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Showing posts with label Missouri. Show all posts
Showing posts with label Missouri. Show all posts

Saturday, February 15, 2014

Intimidation: Missouri Senate passes online database for workers' comp

Privacy is a basic premises of workers' compensation law and the State of Missouri is taking a major step to eliminate it and intimidate injure worker. Today's post is shared from therolladailynews.com
An online database of workers' compensation claims would be created under legislation passed by the Missouri Senate.
Under the measure, SB526, passed on Thursday, businesses could provide a potential employee's name and Social Security number to identify the date of workers' compensation claims and whether the claim is open or closed.
Sponsoring Sen. Mike Cunningham, a Rogersville Republican, says the information is already available but only by written request. Supporters say the bill would help businesses control workers' compensation costs.
A similar bill was vetoed by Democratic Gov. Jay Nixon last year. He cited privacy concerns and called it "an affront to the privacy of our citizens."
Senators voted 26-7 to send the measure to the House.
[Click here to see the rest of this post]

Thursday, September 19, 2013

Oklahoma Work Comp Opt-Out System Under Legal Attack

The recently enacted, and high innovated cost-savings opt-out program in Oklahoma workers' compensation has come under direct legal attack as being unconstitutional.

On Tuesday, Sen. Harry Coates (R-Seminole) joined Rep. Emily Virgin (D-Norman) and the Professional Firefighters of Oklahoma in filing a challenge against the constitutionality of Senate Bill 1062, the workers’ compensation reform bill passed by the legislature and signed by Gov. Fallin during the 2013 legislative session.

“As a longtime businessman, I recognize that it’s necessary to have workers’ compensation rates as low as possible. In fact, I believe we need a workers’ compensation administrative system, just not the unconstitutional and unworkable system created by Senate Bill 1062.

It’s wrong that a fire fighter or any other injured worker should have to pay back benefits after returning to work. This is just one of many problems with this new law.

Instead, I’d support a bill that would give Oklahoma an administrative system like that in Missouri, which is working very well only a few years after being approved by that legislature. Back in 2005 when Missouri went to an administrative system, The Oklahoman advised the Oklahoma legislature to adopt the Missouri workers’ compensation system. That was good advice!

In 2012, the often-quoted Oregon Study showed that while Oklahoma had the sixth highest workers’ compensation rates in the nation, Missouri had one of the lowest rankings at number 36. Oklahoma was 47 percent ABOVE the national median and Missouri was 14 percent BELOW the study median.
Oklahoma needs to pass the Missouri law with no amendments and no changes. Missouri and Oklahoma have similar constitutional provisions regarding injuries, and the Missouri law has already survived constitutional tests. There is no doubt that their administrative system could work in Oklahoma and reduce rates for businesses, small and large.

I appreciate Rep. Emily Virgin and the Professional Firefighters of Oklahoma for joining me in this effort.”

Thursday, May 16, 2013

The Scarlet Letter - Workers' Compensation Style

Privacy, that was thought to be a paramount concern for individuals in workers' compensation, is now going away in Missouri. The Missouri legislature passed legislation that will allow employers to review the pending claim status of prospective employees to determine whether they have filed any workers' compensation claims. Injured workers in Missouri will now be stigmatized as a result of filing a workers' compensation claim.

"The division shall develop and maintain a workers' compensation claims database, accessible to potential employers through the division's website, containing all claims filed for compensation under this chapter. Claims records shall be retrievable only by an employer who during a pre-hire period provides a potential employee's name and social security number and shall, upon retrieval, identify the date of any claim made by such potential employee and whether the claim is open or closed."

To view the enacted bill SB34 go to www.moga.mo.gov


Saturday, November 24, 2012

The "New Normal," Special Compensation Funds and Viability

An Arizona Appeals Court has ruled that Special Funds [Second Injury Fund] used to pay workers' compensation benefits and fund the administrative agency, can be transferred to the state’s general treasury and used to fund the state’s general liabilities.

The Court , in allowing $4.7 Million to be transferred by the state Legislature to the general treasury, held that the special fund was funding source subject to legislative review and appropriation.  “….Because the legislature set the  percentage rate of premiums from the  State  Compensation Fund and private carriers to be placed in the Special Fund, the funds are public monies,” and is therefore a public fund.

Second Injury Funds have been phased out throughout the US. Major industrial states have eliminated them over the past several decades, a move historically supported as employers, insurance companies and the American Bar Association.

New Jersey still has such a fund, ie., The Second Injury Fund. It has been decimated economically after the economic downturn and a series of similar repeated raids by the legislature. While a constitutional amendment has been enacted to prohibit raids, the economy has not increased enough to withstand the fiscal challenges.

Other states face similar problems. Missouri’s fund has not been able to pay beneficiaries for decades as it heads for extinction. New York’s fund has been challenged since assessments are soaring beyond what Industry feels are sustainable in the week economy.

The real challenge facing the nation’s patchwork of workers’ compensation programs is how to fund them generally in light of increased medical costs, lack of premiums due to unemployment and the “new normal” now emerging across  the nation.

Read the decision: Industrial Commission of Arizona, et al. v. Janice K. Brewer, Governor, et al. , 1 CA-CV 11-0119 , (AZ App 2012), decided 11/23/2012.


Wednesday, July 11, 2012

Former CEO for Missouri Employers Mutual and Attorney Sentenced for Misappropriation of Funds

Seal of Missouri.
Seal of Missouri. (Photo credit: Wikipedia)

Roger B. Wilson was sentenced to two years probation, a $5,000 fine, $5,000 restitution and 100 hours of community service.  Edward Griesedieck III was sentenced to one year of probation, a $5,000 fine, $5,000 restitution and 100 hours of community service.  Both were sentenced involving their misappropriation of funds from an insurer.

Wilson was CEO of Missouri Employers Mutual (MEM),  a provider of workers compensation insurance.  Douglas Morgan, now deceased, was the Chairman of the Board of Directors of MEM.  Edward Griesedieck III was a partner with the St. Louis law firm of Herzog Crebs and provided legal services to MEM.  In July 2009, Griesedieck made a $5,000 contribution to the Missouri Democratic Party at the direction of Douglas Morgan and then billed the contribution to MEM on his legal bill as "cost advanced."  The MEM Board of Directors was unaware of the political contribution or the falsity of the legal bill.  Without permission from the Board, Wilson, at the direction of Morgan, approved the payment of Griesedieck’s legal bill, including the reimbursement of $5,000 for the political contribution.  As a result, the public campaign disclosure records for the State of Missouri falsely reflected the contributions from Griesedieck’s law firm.  

In December of 2009, Morgan again directed Griesedieck to make a contribution to the Missouri Democratic Party, this time for $3,000, but with the promise that he, Morgan, would personally reimburse Griesedieck for the contribution.  Later, when Morgan ran into financial problems, he then directed Griesedieck to bill MEM for the contribution.  However, when in-house counsel for MEM discovered in a routine review that the "cost advanced" related to a contribution to the Missouri Democratic Party, Wilson then reimbursed Griesedieck from his personal funds. 

Rodger Wilson, Columbia, MO; and Edward Griesedieck III, Town & Country, MO, both entered guilty pleas in April to one misdemeanor count of misappropriation of funds from an insurer. They appeared today for sentencing before U.S. Magistrate Judge Mary Ann Medler. 

As part of his plea, Griesedieck agreed to surrender his law license for 18 months.  Further, both Wilson and Griesedieck entered into consent orders with the Missouri Ethics Commission and paid fines of $2,000.  Both have also made restitution to MEM for the funds used to reimburse Herzog Crebs for the political contributions.
           
This case was investigated by the Federal Bureau of Investigation.  Assistant United States Attorney Hal Goldsmith handled the case for the U.S. Attorney’s Office.  Missouri Employers Mutual fully cooperated and provided assistance in the investigation.

More on Corporate Fraud

Nov 03, 2011
OSHA: Corporate Fraud Contributed To Nation's Economic Problems. The U.S. Department of Labor's Occupational Safety and Health Administration will publish interim final rules in the Nov. 3 Federal Register that revise the ...
Nov 01, 2011
Report counters efforts from U.S. Chamber and its corporate allies to deny recourse to workers and consumers dying from asbestos exposure. The U.S. Government Accountability Office (GAO) released a report – requested ... The report refutes claims made by the U.S. Chamber and asbestos manufacturers, finding that the trusts are transparent and have measures in place to prevent fraud. The following is a statement from American Association for Justice President ...
Jan 11, 2012
OSHA: Corporate Fraud Contributed To Nation's Economic Problems (workers-compensation.blogspot.com); Baby Boomers Have Work Comp Claims Too (workers-compensation.blogspot.com); Misrepresentation on ...
Apr 20, 2011
The book, Confessions of a Union Buster, gives us insight into the active national agenda of Corporate American to redesign the nation's workers' compensation system through a conspiracy employing the use of smoke and mirrors. Martin Jay Levitt, who performed despicable acts as an employer-sponsored union ... Levitt knew that these tests were a sham and a fraud from the beginning. “The employer attitude survey is a shameful example of science twisted into ...


Monday, May 21, 2012

Too Big To Fail?

Seal of Missouri.
Seal of Missouri. (Photo credit: Wikipedia)
Is the  Missouri Second Injury Fund too big to fail? It appears not. Stagnation and indecision has really become a phase-out of the program and that wind-down process was initiated 7 years ago.


Read more: No changes made for Missouri injured worker fund
Southeast Missourian
In addition, more than 31000 cases are pending against the Second Injury Fund. The fund is financed through a surcharge that employers pay on their workers' compensation insurance. That charge was capped at 3 percent under a 2005 workers' compensation ...

Monday, April 23, 2012

Federal Court Dismisses Lawsuit to Preserve Missouri Second Injury Fund

A Federal Judge in Missouri dismissed a Federal lawsuit that was filed to forced the State of Missouri to fund its Second Injury Fund for workers' compensation beneficiaries.


The Court held:
“'Decisions over what programs to fund or not to fund generally represent a basic right and power possessed by the legislative branch....'  'Plaintiffs have cited no case law, and the Court is not aware of any, which stands for the proposition that a legislative decision to de-fund a program can represent a taking of a plaintiff’s entitlement.'”
Hon. Nanette Kay Laughrey


Click here to read the decision, Pettet v. May, No. 2:11-CV-04049-NKL (USDC W.D.Mo) Decided April 19, 2012


Click here to read the report in The Kansas City Business Journal

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Tuesday, March 20, 2012

Workers' Compensation: Are Second Injury Funds Going to be History Soon?

As the Second Injury Fund debate in Missouri becomes more heated,  one must consider the underlying issues challenging its existence. Whatever the outcome, injured workers being denied benefits ordered by judgment should not he held hostage to political motivations.

See Workers' Compensation: Are Second Injury Funds Going to be History Soon?

Wednesday, October 26, 2011

Employee Allowed to Sue Employer for Negligence Resulting From an Occupational Exposure

Guest Blog by John R. Boyd

A Court of Appeals in Missouri has ruled that an employee, who became ill as a result of an occupational exposure to asbestos fiber, may sue his employer for negligence. The Court ruled that the limitations on recovery of the Workers' Compensation Act did not bar a claim where an occupational exposure occurred.

On September 13, 2011, the Court of Appeals for the Western District of Missouri issued a very rare en banc opinion on a writ of prohibition allowing the employee's claim to go forward. The ill worker was exposed to asbestos, a known cancer causing agent, while working for 
KCP&L Greater Missouri Operations Company (KCP&L)  from 1954 to 1988 and was diagnosed with mesothelioma in 2010. Mesothelioma is a rare, but fatal, asbestos related disease.

His claims against his employer, KCP&L,  relied upon premises liability and negligence theories. The employee alleged that KCP&L had a duty to exercise "reasonable care" in preventing an "unreasonable risk of injury."   KCP&L argued that the Missouri Workers' Compensation Act was his exclusive remedy, and sought summary judgment, which was ultimately denied by the trial court.

The Appeals Court held in its 7-2 opinion, that a strict reading of the  Missouri Statutes §287.020.2 and §287.120 defeated KCP&L's argument that the claimant's occupational disease was covered by the Act, and that workers' compensation was the employee's exclusive remedy available. The Court reasoned that the 2005 amendments to the Missouri Workers' Compensation Act required a "strict construction" of the Act. 

The exposure at work was deemed not to be a specific accident, but rather a continuous occupational exposure over 34 years. The Appeals Court differentiated the occupational exposure to asbestos from a specific accident that is defined as "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."

The Court's ruling opened the door for this worker and others who have been exposed in such a fashion to pursue a lawsuit against his or her employer directly, and not be constrained by the limited economic bounds of the Workers' Compensation Act.

This change in the law came about as a result of previous aggressive actions by business and industry to modify the Missouri Workers' Compensation Act in an to attempt to eliminate claims. The ultimate lesson to be learned is that when a pro-business Legislature deforms the law, and attempts to carve-out certain types of injuries from being compensable, they force such cases into the civil arena. Be careful what you ask for----you just might get what you deserve.

Following the Appeals Court's  ruling, an Application for Transfer to the Missouri Supreme Court was filed by counsel for the appellant's on 9/27/11. No ruling on the transfer request has been made by the Missouri Supreme Court.

State ex rel KCP&L Greater Missouri Operations Company v. Hon. Jacqueline Cook WD73642 2011 WL 4031146 (Mo.App. W.D.) (September 13, 2011)


John R. Boyd  is President of the Workers' Injury Law and Advocacy Group (WILG). He is the managing partner of Boyd & Kenter, P.C., Kansas City, MO, and is licensed to practice in Missouri, the United States Court of Appeals for the Eighth Circuit; and the United States District Court for the Western District of Missouri. He is currently a member of the Missouri Bar Association, the Kansas City Metropolitan Bar Association (Chairman of the Workers' Compensation Committee 2000-2001), the Missouri Association of Trial Attorneys (MATA), and the American Association for Justice. 

Monday, May 9, 2011

Missouri, The Second Injury Fund and Paying Up

The St. Louis Post Dispatch today called upon the State of Missouri to do the right thing and stop hold injured workers hostage. In an editorial it declares that injured workers should receive benefits that they have been awarded un the Missouri workers' compensation Second Injury Fund which is now underfunded and unable to meet payment.

Citing the flight of an injured iron worker, Harold Frick, it calls for immediate payment now and compromise going forward to resolve the economic issues facing the Missouri workers' compensation system. Like most workers' compensation systems throughout the US, Missouri's system is facing serious economic challenges as it is confronted by a declining economic base upon which to draw premiums to support the system,

In order to insure that workers who have been injured previously can obtain gainful employment, the many legislatures created a second injury fund to insulate subsequent employers from responsibility for prior disability if the employee in question became totally disabled from a compensable accident or event during the last employment. The fund was established to encourage the employment of the handicapped by alleviating the burden placed upon the employer for compensation benefits should the injured worker become totally and permanently disabled. A question now exists on how to finance these funds that have disolved already in many jurisdictions.


For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.


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Thursday, March 24, 2011

MIssouri Mulls More Work Comp Reform

Guest Blog by B. Michael Korte


The Missouri legislature is again considering a number of proposals to change its workers’ compensation system. Every year brings various efforts to continue to ratchet down the benefits provided to injured workers, but this year is the first since 2005 that any change is expected. That year, extensive changes were passed, including a requirement that cases be construed "strictly" rather than liberally. 

Strict construction has proven to be a two-edged sword, with courts recently strictly construing Missouri law to allow more civil lawsuits against fellow employees, and perhaps excluding occupational diseases from the workers’ compensation system and allowing them to proceed in the civil court system. 

Legislation will almost certainly pass in the pro-business-dominated legislature to close these loopholes. What remains to be seen is whether the legislature will finally act to save the state’s second injury fund

The 2005 legislation placed a hard cap on funding for the fund, which has left it nearly bankrupt. The fund stopped making settlement offers in 2009, but now is finding itself unable to pay arrearages on permanent total disability awards. Although numerous independent audits agree that lifting the cap would solve the problem, legislative proposals are focusing instead on limiting or eliminating the fund.

The legislature will have until its adjournment on May 13 to solve the problem, but will also be consumed with budgetary and other problems in the meantime.

B. Michael Korte practices in Kirkwood, Missouri (The Korte Law Firm). B. Michael Korte is the author of Missouri Practice Vol. 29, Workers Compensation Law and Practice. He previously served as president of the Missouri Association of Trial Attorneys, and  has been awarded its Outstanding Service Award. He previously served as president of the Missouri Association of Trial Attorneys, and has been awarded its Outstanding Service Award. He frequently lectures statewide at seminars sponsored by the Missouri Division of Workers’ Compensation, bar associations, and other groups. He has served as the chair of the Missouri Bar Association Workers’ Compensation Committee and as President of Kids’ Chance, Inc., a workers compensation charity.

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Thursday, February 10, 2011

AIG Reaches For Its Wallet to Cover $4.1 Billion in Work Comp Claims and Asbestos Liabilities

American International GroupImage via Wikipedia
The American International Group (AIG), the huge insurance company that the US Government bailed out financially, is still hard pressed to raise funds to cover on going claims. AIG has announced that it will need to raise another $4.1 Billion dollars to cover such costs as primary and excess workers' compensation claims and asbestos liability claims.

AIG's long and troubled history was the subject of investigative reporting in the Academy Award nominated film, Inside Job. The Many factors have impact on an insurance company's solvency including the ability to collect premiums in a down economic cycle, the investment of the premiums collected and colateral bad investments the have a massive economic impact of the financial worth of the company in general.

Workers' compensation claims continue despite  a low employment cycle. Latent diseases, such as asbestos related lung cancer, asbestosis and mesothelioma, may be dormant for decades before  manifesting into a chronic and  terminal medical condition.

The industry continues to struggle on how workers' compensation should be employed to insure industries and employers from these condition. Originally the workers' compensation acts did not cover occupational conditions such as silicosis or asbestosis. In the 1950s acts were amended, at industries insistence to bring these occupational conditions under the umbrella of coverage and shield employers from civil lawsuits. With the expansion of products liability claims, based on the intentional concealment of information of the hazards of these conditions, as well as low economic recoveries from struggling workers' compensation systems put the boat back into the bottle, "the longest running tort", asbestos litigation, was born.

Industry continues to try to put the genie back into the bottle, which is reflected in the latest attempt in Missouri to bar liability claims against employers and co-workers. One of the incentives of a workers' compensation program is to prevent industrial accidents, but the system continues to struggle both economically and procedurally in achieving that objective.

The need for AIG to raise additional cash to pay claims raises a concern as to whether premium dollars to pay claims are being adequately protected in the first place, and whether those premiums ared being directed to injured workers and victims of occupational illness. Instead of trying to figure how to further restrict the payment of benefits, perhaps more attention should be paid to making a safer workplace by banning asbestos use, and providing more convenience access through universal medical care.

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