Mold in the workplace: What Missouri employees need to know

September 27, 2013

mold-on-the-steps-986716-m.jpgWhen most people hear about a workers' compensation claim, they often think of accidents resulting in physical injuries like broken bones, back or neck injuries, or permanent disability. However, a workers' comp claim can also be connected to an occupational disease, which is defined as "a condition or illness caused by occupational exposure in the workplace." According to the Missouri Department of Labor, occupational diseases recognized by Missouri law include injuries caused by repetitive motion, loss of hearing due to workplace noise, and radiation disability. They may also include respiratory diseases caused by repeated exposure to certain workplace contaminants, including mold.

Basic facts about mold in the workplace:

• The Occupational Safety and Health Administration (OSHA) reports that mold is a type of fungi that can be found both outdoors and indoors throughout the year. There are thousands of different species of mold.

• Every species of mold shares a common attribute: it can grow with only a spore ("a viable seed"), a nutrient source, moisture, and a suitable temperature. It does not need sunlight, which is why mold is most common in dark, damp areas.

• Mold can create and release millions of spores that pose a threat to human health. It can also produce toxic agents called mycotoxins, which is also known to have adverse effects on the human body.

• Most mold found indoors comes from outdoor sources. However, mold commonly grows - and becomes a health threat - in indoor spaces where water damage, high humidity and/or dampness is present.

• Symptoms of mold exposure vary dramatically, depending on the person. OSHA officials say the people most at risk are children and the elderly, along with those who suffer from allergies, asthma, sinusitis, and other respiratory conditions. People who have weakened immune systems are also at high risk for mold-related illnesses.

How Missouri workers can protect themselves from mold-related illnesses:

• If you are concerned that you're developing health problems associated with mold exposure in your work environment, you should report those concerns to your supervisor as soon as possible. Employers are required by law to provide a safe, healthy working environment for their employees.

Officials at the National Institute for Occupational Safety and Health (NIOSH) strongly advise that you seek immediate treatment from a medical professional, who can diagnose and evaluate your symptoms and determine whether you should be medically restricted from your work environment.

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OSHA cites Missouri company for serious safety violations following fatal workplace accident

September 11, 2013

high-voltage-7-985260-m.jpgBusinesses have a legal obligation to provide a safe working environment for their employees. When workplace conditions cause workers to suffer serious injuries while in the course of their duties, the employer is liable for certain costs associated with those injuries - and the business may also be subject to citations and fines from federal authorities who create standards for workplace safety.

Recently, the Occupational Safety and Health Administration (OSHA) announced that it was proposing over $50,000 in fines for a St. Louis business after an employee was fatally injured last May. According to OSHA officials, the fines are connected to safety violations that were discovered when the Administration investigated the death of 55 year-old Mach Nguyen, who was employed by St. Louis Cold Drawn Inc. The St. Louis Post-Dispatch reports that Nguyen was electrocuted when he reached into an energized electrical panel box, attempting to grab his work gloves. He was taken to a local hospital by ambulance, where he was later pronounced dead.

Following Nguyen's death, OSHA launched an investigation into St. Louis Cold Drawn, a steel bar manufacturing facility that employs about 90 workers. They found a number of safety violations that increased safety risks for the company's employees. Overall, the business was cited for 19 serious violations, many of which were connected to electrical issues, including exposing employees to live electricity and failing to train employees about safe practices and lookout procedures when they may be exposed to electric shock. "Allowing workers to be exposed to live electricity without enforcing electrical safe work practices is inexcusable," said Bill McDonald, area director for OSHA in St. Louis, in an official news release. "Employers, such as St. Louis Cold Drawn, have a responsibility to train workers in safe electrical work practices, such as recognizing unsafe conditions when exposed to hazards."

In addition to the serious violations, OSHA investigators also cited the company for seven "other-than-serious violations," which include failing to keep appropriate records of employees' illnesses and injuries and failing to keep a list of the hazardous chemicals used in the course of business. St. Louis Cold Drawn has 15 days to address and rectify the violations, request a conference with OSHA area director Thompson, or contest the safety violations and their penalties. In 2002, the company was cited by OSHA for seven safety violations at its St. Louis facility.

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How do other kinds of benefits impact Missouri workers' compensation claims?

weldingworker.jpgOur Missouri workers' compensation attorneys know that many seemingly simple workers' comp cases can become much more complex when other government benefits and agencies are involved. If you are receiving other kinds of benefits at the time you suffer a Missouri work-related injury, your claim might become extremely complicated too. In this post, we discuss some other benefits or situations which might complicate your workers' compensation claim.

• Unemployment benefits: Employees are disqualified from receiving workers' comp disability benefits if they are receiving unemployment compensation. If you do somehow receive workers' comp checks while you are collecting unemployment benefits, be aware that you will be required to pay back the workers' comp disability benefits.

• Medicare: If the injured employee is covered by Medicare at the time of the accident, or will be eligible for Medicare within thirty days from the date of the accident, the Centers for Medicare & Medicaid Services (CMS), a federal agency, must be notified. There are a lot of factors involved which can delay or hinder a claim once Medicare is involved. Try to get CMS involved as soon as possible to avoid long delays.

• Social Security Disability: If you believe you will not be able to return to work for more than a year, or if you have become permanently disabled as a result of your on-the-job injury, then you need to apply for Social Security Disability benefits immediately. This system is completely different than the Missouri workers' compensation system, and it can take two to three years to start receiving benefits. In addition, each government agency requires has a different burden of proof that must be met in order for the agency to approve your claim. In other words, just because you qualify for workers' compensation doesn't mean you will also qualify for SSD benefits. Furthermore, any disability money you receive from your workers' comp claim might lower the amount of SSD benefits you're eligible for. Under these circumstances, it's often beneficial to retain a workers' comp attorney who is familiar with this type of case.

• MO HealthNet Payments: Following your workplace injury, if you receive any medical care that is paid for by MO HealthNet, you may have to reimburse them once you receive your workers' comp settlement award. Bear this in mind, and discuss it with your employer's insurance carrier so you will understand exactly how to handle this situation.

• Child Support: If you are paying court-mandated child support, a work injury does not excuse you from making the legally required payments. Instead, the insurance company is required by Missouri law to give a portion of your benefits to whomever the child support is owed.

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Governor Nixon signs legislation to address Missouri's failing Second Injury Fund

wheelchair.jpgRecently, Governor Jay Nixon signed new legislation that works to help fund Missouri's financially struggling Second Injury Fund (SIF). The SIF is designed to cover employees who have pre-existing injuries or disabilities and suffer from additional work-related injuries. It is funded by a surcharge on employers' workers' compensation premiums, which was capped at three percent in 2005. Currently, the SIF owes more than $32 million in initial payments and has an account balance of $9.3 million, and lawmakers say the 2005 cap on the surcharge has contributed to the SIF's insolvency. The new legislation raises the surcharge percentage and increases revenue at a steady rate that can keep up with the fluctuating annual expenses of the program.

The new legislation (Senate Bill 1, sponsored by Sen. Scott Rupp, R-Wentzville) will temporarily raise businesses' SIF surcharge to six percent, starting January 1, 2014 and continuing through 2021. Governor Nixon says the higher surcharge will help increase revenue and allow the state to begin making several initial payments for claims. "I appreciate the bipartisan efforts of lawmakers and stakeholders to craft a fair solution to a difficult, complex and long running-problem," Nixon said in a statement. "Shoring up the Second Injury Fund will provide long-overdue certainty to businesses and security to injured workers."

Critics of the bill fear the three percent increase in surcharge will not be enough to cover all of the fund's expenses. Also, some have expressed concerns that the program will begin to disperse initial payments, but run out of funding too quickly to continue making payments in the long run.

Besides helping disabled workers, this legislation is also aims to help employers. The 2005 changes in workers' compensation law resulted in more court expenses for businesses, causing employers to rely more heavily on the court system instead of resolving claims through a more administrative process.. However, the new legislation redefines what work related injuries and diseases are covered under workers' compensation. The bill reduces court expenses by making it easier for employees to prove that an injury was work-related, which helps reduce legal costs for employers while still providing benefits to injured workers.

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Dealing with a workplace injury: Tips and info for Missouri workers

1123374_industrial_-_factory_2.jpgIf you or a loved one has been injured on the job in Missouri, you may be hesitant about taking legal action because you're concerned about the impact it could have on your employment. Many injured workers worry that litigation will ruin their working relationship, while others are reluctant to deal with the stress of what can be a lengthy process.

However, under state law, the Missouri workers' compensation system is the exclusive remedy for damages and losses associated with workplace injuries. This means you do not need to sue your employer to recover financial compensation for your injuries and lost wages - in fact, in the vast majority of cases, you legally can't sue your employer. Any damages you suffer will be remedied through the worker's compensation system, not by filing a personal injury claim in civil court.

Workers' compensation involves a tradeoff for both employers and employees.
When you suffer an on-the-job injury, you're entitled to workers' compensation benefits regardless of who was at fault for your accident, but you are not permitted to sue your employer for negligence. In turn, your employer can't be subjected to a lawsuit, but your employer cannot assert any legal defenses to your claim for workers' compensation.

To be eligible for workers' compensation, your injury must have occurred within the course and scope of your employment.
So long as you were acting within the scope of your employment when your injury occurred, you are covered by workers' compensation. In other words, you're covered if you were injured in the course of performing your job duties. Be aware, however, that workers' compensation benefits are usually not available to employees who are injured while commuting to or from their workplace, under what is known as the "going and coming" rule.

Workers' compensation insurance is required for most employers.
Employers who have five or more employees are required by law to carry workers' compensation insurance. Employers in the construction industry must have workers' comp insurance if they have one or more employees. The law does provide exemptions for certain kinds of employees (section 287.090 RSMo), including farm laborers, domestic servants, certain real estate agents and direct sellers, and commercial motor-carrier owner operations

Workers compensation benefits are designed to cover your medical expenses, lost wages and permanent disability following a workplace injury.
Workers' comp benefits should cover your doctor visits, physical therapy appointments, hospitalization, and all other medical expenses medically necessary to diagnose and treat your work injury. If your injury prevents you from returning to work or from performing certain tasks, you may also be entitled to disability benefits.

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Businesses use "ghost policies" to escape workers' compensation costs, leaving workers at risk

February 26, 2013

304930_construction_site.jpgMissouri workers' compensation law exists to protect and support employees who are injured in the course of their employment. However, when businesses don't hold up their end of the bargain, innocent workers are left to face the many consequences of their injuries, which can include numerous medical expenses, lost wages, and the inability to return to work.

Recently, a state audit conducted in North Carolina revealed that the state's Industrial Commission has failed to recognize and address a growing problem: "businesses openly skirting their responsibility to carry [workers' compensation] insurance." The audit followed a three part series published in 2012 by the Charlotte News & Observer, which exposed the consequences of these illegal practices and their impact on both injured employees and other honest employers who comply with state law.

In part, the News and Observer's series highlighted the story of Clemente Hernandez Gonzalez, a North Carolina construction worker who was injured on the job in March 2009. Gonzalez was a passenger in a company vehicle when the driver fell asleep at the wheel and crashed. As a result, Gonzalez suffered a spinal cord injury that left him paralyzed from the chest down. The Observer reported that the estimated cost of Gonzalez's lifetime medical treatment is nearly $8 million.

State workers' compensation systems exist to protect employees in circumstances just like this one. However, following the accident, Gonzalez discovered that his employer, Worrell Construction Co., had taken advantage of a loophole in state law. In North Carolina, businesses that employ three or more workers are required to carry workers' compensation insurance. To skirt this requirement, the owner of Worrell Construction purchased what is known as a ghost policy.

Ghost policies are intended for business owners who have no employees and who opt to exclude themselves from workers' compensation coverage. These cheap policies are supposed to cover a "future" employee who may be hired in the coming year. For the first nine years Worrell Construction was in business, the company paid about $30,000 a year for full workers' compensation coverage. Then, in 2006, Worrell reclassified its employees as "subcontractors," told an insurer it had no employees, and purchased a ghost policy. The yearly premium for that policy? A mere $850.

General contractors require subcontractors to present proof of workers' comp coverage before beginning a job. But the News & Observer says the certificates for ghost policies "look no different from other policies, however, and are tough, if not impossible, for those hiring the company to detect." Thus, the business saves thousands of dollars, and no one is the wiser. That is, unless an employee - like Gonzalez - is injured on the job.

Gonzalez's existing medical bills already exceed $250,000, and he has not yet received a dime. He is currently involved in litigation against Worrell; Worrell's insurer, Cincinnati Insurance; and Patrick Lamm, a general contractor who hired Worrell. Lamm says he had no idea Worrell did not have full coverage. Worrell shut down on the day of Gonzalez's accident, and the North Carolina Industrial Commission will charge the company with criminal fraud if it attempts to resume operations.

And there's another consequence of this kind of legal loophole. Companies that pay tens of thousands for workers' comp coverage can't compete with cheating businesses that pay significantly less in insurance premiums. According to the News & Observer, "those who play by the rules say they struggle to stay afloat while competitors who break the law profit."

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Missouri temporary workers are entitled to safety and health protection from employers

February 19, 2013

file0001829935472.jpgA temporary worker is an employee who is hired to fill a specific position for a limited amount of time. Also known as "temps," "contract workers," and "seasonal employees," temporary workers are often hired to help with increased demand or seasonal business that is common in certain industries. Certain employees working for subcontractors - a laborer, hired to work on a specific construction project, for example - are also considered temporary workers. Despite their temporary status on the job, temp workers are entitled to the same basic safety and health protections as permanent employees.

Recently, officials from the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) cited Bacardi Bottling Corp. for 12 safety violations after a temporary worker was killed during his first day at work. According to the Jacksonville Business Journal, 21 year-old Lawrence Daquan "Day" Davis died when he was crushed by a palletizer machine in August 2012. Davis was reportedly cleaning glass from under the machine when another employee restarted the machine.

OSHA officials say Bacardi failed to provide temporary workers with adequate training to operate the palletizer machine. The company was also cited for exposing workers to safety hazards, failing to ensure safety devices were in place, and failing to develop and implement appropriate safety procedures. Two of the 12 violations are considered willful, meaning "committed with intentional knowing or voluntary disregard" for workplace safety laws. Nine others are considered "serious," meaning there was a "substantial probability" that Bacardi's practices would cause serious workplace injuries, and that the company knew or should have known that its employees were at risk.

"We are seeing untrained workers - many of them temporary workers - killed very soon after starting a new job. This must stop," said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, in an OSHA news release. "Employers must train all employees, including temporary workers, on the hazards specific to that workplace - before they start working. Had Bacardi done so, this tragic loss of life could have been prevented."

Employers are legally required to provide a safe workplace environment for all their employees. If you're currently employed as a temporary worker and you've been exposed to a hazard that threatens your health or safety, you can file a complaint and request an OSHA inspection. And if you've been injured as a result of a workplace hazard, it may be beneficial to speak with an attorney about a workers' compensation claim. For more information about workplace safety and temporary workers, visit the National Council for Occupational Safety and Health (National COSH) online.

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Preventing workplace falls on Missouri construction sites: Plan, provide & train

February 4, 2013

Thumbnail image for 1057448_ladder_and_sky.jpgIt's common for Missouri construction workers to work at elevated levels, using ladders or other equipment to reach desired heights. Sadly, many falls happen on job sites each year: fall-related injuries and fatalities happen more often in construction than in any other industry. Data from the Occupational Safety and Health Administration (OSHA) reveals that falls are the number one cause of death in construction. In 2010, 255 construction workers were killed in falls while working from heights, and over 10,000 workers were injured. The National Institute of Occupational Safety and Health (NIOSH) reports that workplace falls "constitute a considerable financial burden: workers' compensation and medical costs associated with occupational fall incidents have been estimated at approximately $70 billion annually in the United States."

The frequency of workplace falls in the construction industry has prompted OSHA, in partnership with NIOSH, to develop a fall prevention campaign. This campaign is designed to "provide employers and workers with life-saving information and educational materials about working safely from ladders, scaffolds and roofs," according to an OSHA news release. Secretary of Labor Hilda L. Solis stressed that many workplace falls are preventable, provided contractors and construction workers implement fall prevention practices. "Falls are the most fatal out of all hazards in the construction industry, accounting for almost one in every three construction worker deaths," Secretary Solis said. "Our simple message is that safety pays, and falls cost."

OSHA and NIOSH have coordinated with the National Occupational Research Agenda (NORA) program to create some basic fall prevention tips. The campaign provides various materials to promote three core messages (plan, provide, and train).

• Contractors and workers can plan together, before every job, to work safely at heights.
• Contractors must provide the right equipment for working at heights, and workers need to use that equipment.
• Contractors and workers need to be trained to use the equipment and to work safely.

Multiple factors can contribute to workplace falls, including the following:

• Walking/working surfaces that are wet, cluttered, or unstable
• Unprotected edges
• Floor holes and wall openings
• Unsafely positioned ladders
• Misused fall protection/poor fall protection training

"We have often heard the old adage, 'Plan your work and work your plan,'" said R. Ronald Sokol, president and CEO of Safety Council Texas City, in a recent interview with NIOSH eNews. "This statement is the foundation of the risk management philosophy to eliminate falls from heights. Without proper planning, workers are placed in a reactive mode based on their limited knowledge plus experience and expertise. Proper planning is used to greatly limit fall exposure."

For more information about workplace fall prevention, visit

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What research reveals about workplace injuries in Missouri, nationwide

January 26, 2013

1003297_workman_sign.jpgRecent research has provided both employers and employees alike with specific data concerning workplace injuries: where they happen, why they happen, and how often they happen. When examined together, these studies provide an overview of American occupational health - and some of the findings might surprise you.

What kinds of jobs are the most dangerous?

Federal data reveals that workers at nursing and residential care facilities report the highest incidence rate of non-fatal workplace injuries, at 14.7 injuries per 100 full time workers. Other industries with high injury rates include travel trailer and camper manufacturing, fire protection, skiing facilities and iron foundries. Surprisingly, workers at petroleum refineries were at the other end of the list, reporting 0.7 injuries per 100 full time workers. In terms of fatal workplace incidents, fishing workers, logging workers, pilots and farmers reported the highest death rates.

Does geography affect workplace injury incidence rates?

According to the U.S. Bureau of Labor Statistics, there were 3.1 million nonfatal workplace injuries reported by Americans in 2010, meaning the overall U.S. incidence rate is about 3.5 injuries per 100 full-time workers. An estimated 59,000 U.S. workers died in 2007, while approximately 44,000 Americans died in car accidents; 41,000 died of breast cancer; and about 29,000 died of prostate cancer.

In terms of individual states, Maine has the highest injury incidence rate on record, with about 5.6 injuries per 100 full time workers. In contrast, Washington D.C. has the lowest injury rate at only 1.9 injuries per 100 full time workers. Missouri, Utah, New Mexico, Alabama and Florida are the only other states that have reported incidence rates lower than the national average.

How much do workplace injuries cost the United States?

A 2012 study revealed that injuries and illnesses contracted at work cost the U.S. approximately $250 billion dollars per year. That's $31 billion more than all direct and indirect costs associated with all forms of cancer. It's also $76 billion more than costs associated with diabetes, and $187 billion more than expenses associated with strokes.

"It's unfortunate that occupational health doesn't get the attention it deserves," said author J. Paul Leigh, professor of public health sciences at the University of California, Davis. "The costs are enormous and continue to grow. And the potential for health risks are high, given that most people between the ages 22 to 65 spend 40 percent of their waking hours at work."

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The growing role of social media in Missouri workers' comp cases

January 19, 2013

1260785_laptop_work.jpgIn this day and age, it's difficult to imagine life without social media. Websites like Facebook and Twitter, extremely popular in recent years: about half of adult Americans have a social networking account, and approximately 22% use networking sites several times a day. Since social media often plays such a large role in an individual's daily routine, it can be a key factor in legal proceedings - especially in the pursuit of a Missouri workers' compensation claim.

In fact, it's becoming increasingly common for information associated with a social media account to be used as evidence in a workers' compensation case. Such an account creates a supply of electronically stored data (ESI), which can offer insight into a claimant's regular activities. "Workers' compensation claims are for the most part based on individualized factual situations based on a collection of social experiences involving work-related events. The collection of ESI on social networks, such as Facebook, has become a treasured library of information that can be utilized to defend or prosecute these matters," reports Property Casualty 360.

For example, in a 2011 Missouri workers' comp case (Dwyer v. Federal Express), an employer introduced online photos of a claimant hauling watermelons, arguing that such activity was inconsistent with someone suffering from a debilitating back injury. Ultimately, the claimant was awarded benefits, but only because the administrative law judge (ALJ) accepted his explanation: the pictures were staged for his friends, and he wasn't actually carrying any weight.

Other claimants aren't so fortunate. In February 2012, an injured worker in Arkansas was denied an extension of benefits after online photos were presented as evidence against him. The claimant, Zackery Clement, was initially awarded temporary total disability benefits for an injury he sustained when a refrigerator fell on him. He underwent three surgeries and then applied for an extension of benefits, maintaining that he was in "excruciating pain" and in need of further medical treatment and disability payments. However, his employer accessed photos of Clement - posted on Facebook and MySpace - that showed him "drinking [alcohol] and partying," which became a key factor in the case against him. After Clement's application was denied, he appealed, arguing that the photos should not have been considered as evidence. Ultimately, the Arkansas Court of Appeals ruled that the pictures were allowable.

Of course, the fact that Clement attended a party doesn't necessarily mean that his request for additional benefits was unwarranted: he clearly suffered a debilitating injury. The issue is the way the photographs undermined his claim in court. "Clement contended that he was in excruciating pain, but these pictures show him drinking and partying," Judge David Glover wrote in the appeals court's decision. "Certainly these pictures could have a bearing on a Clement's credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the [Arkansas Compensation] Commission."

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Missouri workers must prove injuries arose "out of and in the course of employment" to collect workers' comp

January 12, 2013

Thumbnail image for file0001675328029.jpgUnder Missouri law, an employee must demonstrate that a workplace injury "[arose] out of and in the course of employment" to be eligible for workers' comp benefits. It might seem black and white: either you were injured on the job, or you weren't. However, a 2012 Missouri Supreme Court decision (Johme v. St. John's Mercy Healthcare) suggests that this issue could present complications to future claimants.

The employee & the injury
Sandy Johme worked as a billing representative at St. John's Mercy Healthcare at the time of her injury. The incident happened in an office kitchen that included a coffee station for all employees, and it was standard practice for the employee who took the last cup of coffee to make a fresh pot for others in the office. Johme was doing just that when she turned and stepped on the edge of her sandal, twisting her ankle and causing her foot to fall out of the shoe. She then fell backwards and landed on the floor.
Subsequently, Johme was transported to the emergency room by ambulance. where she complained of low back pain and left leg pain. An X-ray of her hips and pelvis revealed a fracture. While she did not have surgery to address the fracture, she was admitted to the hospital for pain management and physical therapy.

The claim
Johme filed a claim for workers' comp benefits, but after a hearing, an administrative law judge (ALJ) denied her claim, ruling that Johme's activity - making coffee - did not fall within the scope of her workplace responsibilities. "[Johme] was not performing her [work] duties at the time of her fall at work," the ALJ wrote. "[She] just fell and she would have been exposed to the same hazard or risk in her normal [nonemployment] life."

Johme then appealed to the Labor and Industrial Relations Commission, which reversed the ALJ's decision and awarded benefits to Johme. In its decision, the Commission specifically discussed personal comfort doctrine, which allows employees to collect benefits if they are injured while tending to basic human needs (such as hunger and thirst).

Further, the Commission reviewed the question of whether or not Johme's injury "arose out of and in the course of the worker's employment." Section 287.020.3(2) of Missouri workers' compensation law was amended in 2005 to read as follows:

"An injury shall be deemed to arise out of and in the course of the 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."

In considering the issue, the Commission referenced a 2010 case, Pile v. Lake Regional Health System, which outlined a standard for applying Section 287.020.3(2):

"The first step is to determine whether the hazard or risk is related or unrelated to the employment...Only if the hazard or risk is unrelated to the employment does the second step of the analysis apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life."

The Commission found that making coffee was in fact "incidental to and related to [Johme's] employment," and thus did not consider whether or not she would have been "equally exposed" to the circumstances that caused her injury outside of the workplace. Johme was awarded temporary total disability payments, permanent partial disability payments, and past medical expenses. St. John's then appealed the Commission's ruling, and the Missouri Supreme Court ultimately decided the issue.

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Workplace deaths and survivor benefits: Information for Missouri families

991968_funeral_lights.jpgWhen a loved one dies on the job, surviving family members are left to face an uncertain future. In addition to the grief and devastation that comes with losing a loved one, many families have to worry about numerous expenses, both in the present and long-term. In this post, our Missouri workers' comp lawyers answer some common questions about survivor benefits.

When are Missouri survivor benefits available?

Certain surviving family members may be entitled to survivor benefits under the following circumstances:

• When an employee's death is caused by an on-the-job injury

• When an employee is injured on the job and returns to work with a permanent partial disability (PPD); and later dies of an unrelated cause

• When an employee is injured on the job and is unable to return to work (permanent total disability, or PTD); and later dies of an unrelated cause

In the majority of cases, survivor benefits are available to the deceased's "total dependents," meaning the spouse and/or dependent children. For children, benefits will continue until they turn 18 (unless they attend college full-time, in which case they can receive benefits until age 22). If there is another party who was partially dependent on the deceased, that party might be eligible for partial dependency benefits, but only if the deceased had no total dependents (i.e., no spouse or dependent children).

What kind of benefits can I receive?

• If an employee's death is caused by an on-the-job injury: Survivors may be entitled to weekly payments from the employer/insurer. These weekly payments are given at 66 2/3% of the deceased's average weekly wages during the year before the accident occurred, up to a maximum. Survivors may also be entitled to funeral expenses up to $5,000.

• If an employee on disability dies of an unrelated cause: In general, surviving immediate family members may be entitled to the deceased's accrued benefits - often, a lump sum payment for PPD. However, these kinds of cases can present numerous complications, so we recommend that you meet with an attorney to discuss the specific details of your situation.

What steps do I need to take if I want to claim survivor's benefits?

• When a worker dies in the course of employment, the employer is required by law to report the death to the Division of Workers' Compensation within 30 days after the employer is notified about the fatality. (If this step is not taken, you should notify the Missouri Department of Labor's Fraud and Noncompliance Unit.)

• Once the Division is notified, it will contact the eligible surviving family members and begin paying survivor benefits. (If you are not contacted by the Division and you believe you are entitled to survivor benefits, you should contact the employer - and it may also be in your best interest to seek legal advice.)

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Workers' compensation & employer fraud: What Missouri employees need to know

December 29, 2012

911375_paper_work.jpgWorkers' compensation fraud in employers is a prevalent problem throughout the United States. Recently, the North Carolina Workers' Compensation Journal released its list of the Top 10 Fraud Cases in 2012. Here are a few of the employers who made the list:

• A Florida man and seven other individuals were arrested for funneling more than $70 million in undeclared payroll through 10 different shell companies. By doing so, the ringleader was able to operate a sizeable construction company without paying for workers' compensation insurance.

• In Ohio, more than 41,000 private employers failed to report payroll and pay their workers' compensation premiums, which is a violation of state law. This practice resulted in approximately $5.6 million in unpaid premiums.

• The owners of a Massachusetts roofing company pleaded guilty to several labor violations, including misclassifying over half of their employees as subcontractors; and failing to disclose over $3 million in misclassified subcontractor payroll.

Workers' compensation fraud in employers: The consequences

The most direct consequence of workers' comp fraud in employers is its impact on employees, most of whom have no idea that their employers are doing anything illegal. If a worker is hurt on the job when an employer has failed to maintain workers' comp coverage, the worker will be unable to collect the benefits to which he or she is entitled. Often, this means the innocent employee is left to face the many costs associated with serious, debilitating injuries. Additionally, employer fraud can harm honest business owners. When an employer deliberately misclassifies employees to obtain low insurance premiums, the business has an unfair economic advantage over employers who pay what they owe.

Employer fraud, workers' compensation & Missouri law

• In the state of Missouri, misrepresenting an employee's job classification to obtain insurance at a lower rate is a class A misdemeanor. A second violation is a class D felony.

• Making a false or fraudulent statement regarding an employee's right to benefits (in order to discourage the employee from pursuing a claim) is a class A misdemeanor that can result in fines up to $10,000. A second violation is a class C felony.

• Making a false or fraudulent material statement or material representation in an attempt to deny benefits to an injured worker is a class A misdemeanor that can result in fines up to $10,000. A second violation is a class C felony.

• Employers who knowingly fail to carry required workers' comp liability insurance are guilty of a class A misdemeanor. They can be fined up to three times the amount of the annual premium they should have been paying under the law, or $50,000, whichever is greater. A second violation is a class D felony.

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The Fatal Four: Injuries prevalent on construction sites in Missouri and throughout the U.S.

December 14, 2012

915305_construction_workers.jpgAccording to the Occupational Safety and Health Administration (OSHA), 4,114 American workers were killed while working in private industry in 2011. Of those fatalities, 721 - or 17.5% occurred in the construction industry. That's why OSHA officials have identified the "Fatal Four" leading causes of construction worker deaths in Missouri and nationwide. If these four causes of death were eliminated, OSHA reports, 410 workers' lives would be saved every single year.

The Fatal Four: Leading causes of death for Missouri construction workers

• Slips and falls. In 2011, slip and fall accidents accounted for the majority of fatalities in the construction industry (251 out of 721, or 35%). Numerous factors can contribute to these accidents, including icy or wet floors, debris, grease, and uneven walking surfaces. Depending on the circumstances surrounding the work environment, a slip and fall accident can result in multiple physical consequences, including broken bones, back injuries and traumatic brain injuries.

• Electrocutions. When employees work with or near electrical current, they are extremely vulnerable to serious injury. In fact, in all too many cases, employees are unaware of the electrical hazards that may be present in their work environment, especially in the construction industry. Electrocution can be caused by faulty wiring, power lines, or a simple lack of appropriate safety precautions.

• Struck by object. OSHA officials say struck-by hazards are present any time a worker could potentially be hit by an object. In the construction industry, these hazards are common: materials are often moved above people; employees commonly work from heights or elevated surfaces; and workers often use tolls that can create flying objects. Struck-by hazards can lead to head injuries, neck injuries, broken bones and fractures, and other kinds of physical trauma.

• Caught in/between accidents. Caught in/between accidents happen when a worker becomes squeezed, pinched or crushed between moving or stationary objects. They can happen under a variety of circumstances: when trenches collapse; or when limbs caught in machinery; or when workers are pinned by moving vehicles or other equipment.

Under Missouri law, all employers with five or more employees are required to carry workers' compensation coverage. However, employers in the construction industry are required to carry workers' comp if they employ one or more workers. According to the Missouri Department of Labor, "If you erect, alter, demolish or repair improvements you are regarded as a construction industry employer and are required to purchase workers′ compensation insurance if you have one or more employees." For more information about workers' comp in Missouri, click here.

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Texas employee awarded $5.5 million after suffering traumatic brain injury on the job

December 7, 2012

164791_cancer.jpgA Texas man has been awarded $5.5 million in connection with a 2007 injury he suffered on the job. According to the Lubbock Avalanche-Journal, Charles Robison sustained skull and facial fractures, traumatic brain injuries, a broken collarbone, and a broken arm while working for West Star Transportation, a trucking company based in Lubbock, Texas.

At the time of the accident, Robison was reportedly standing on several boxes, attempting to spread a tarp over a large piece of cotton gin equipment. He fell about 15 feet and landed on his head on a concrete floor. In his lawsuit, Robison alleged that West Star "failed to provide a safe workplace, failed to provide proper fall protection for employees, and [failed] to provide equipment that would have allowed the work to be done safely," the Avalanche-Journal reports.

As a result of the accident, Robison suffered injuries that impaired his speech and his cognitive abilities. He is no longer able to work or care for himself, and he will receive extended medical treatment throughout the duration of his life. In addition, Robison says the damage to his brain had a negative impact on his family and his personal relationships: during the trial, his wife testified that his "attitude toward her changed" following the accident. The couple is now separated.

The jury agreed with Robison, awarding him $5.5 million for the extensive losses he suffered because of the incident, including the following:

• More than $1 million for pain, suffering and physical impairment
• More than $400,000 for future lost wages
• Approximately $3.7 million for current and future medical costs
• Approximately $400,000 (to Robison's wife) for loss of consortium

In Missouri, the workers' compensation system usually serves as the exclusive remedy for injured employees. In other words, in the vast majority of cases, workers who are hurt on the job must pursue a workers' compensation claim, not a lawsuit, to recover damages for lost wages, medical costs, and permanent disability. These workers cannot recover damages for pain and suffering.

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