Discrimination because of exercising compensation rights prohibited –civil action for damages.

287.780. No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.

(RSMo 1939 § 3725, A.L. 1973 H.B. 79)

Prior revision: 1929 § 3335

(1979) Plaintiff who alleges discharge due to filing of a worker’s compensation claim has burden of proving the cause of action. Henderson v. St. Louis Housing Authority (Mo.), 605 S.W.2d 800.

(1993) The rights and remedies provided by this section are independent of, in addition to, any rights provided by a collective bargaining agreement. Claim for retaliatory discharge under statute is not preempted by federal labor law. Cook v. Hussmann Corp., 852 S.W.2d 342 (Mo. en banc).

(1998) Law does not abolish the “at-will” doctrine but provides a limited exception. Crabtree v. Bugby, 967 S.W.2d 66 (Mo.banc).
The Language in the law is quite clear that an employee cannot be fired for filing a legitimate work injury claim. An employer can fire an employee for just cause or for business reasons.If the real reason for firing an employee is for filing a work injury claim and other reasons are given to mask the true motive,then the firing would be illegal.There can be difficulties with proof ,but this a question which can be decided by a jury in a civil case.Make no mistake about it , however, that firing an injured employee for asserting a work injury claim is definitely contrary to the law and damages can be awarded against an employer for such conduct. SUBMITTED BY JEFF SWANEY 314-481-7778 

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Article cited to keep up with GM bankruptcy and its affect on workers compensation claims. JEFF SWANEY FREE CONSULTATION 314-481-7778
(June 1, 2009 – Madison, WI) Self insurance directors had a jolting start to their work week as headlines of General Motors bankruptcy petition filled the news yesterday. The so called “first day motion” to the court included a petition to continue wages and benefits to GM’s workforce. As part of this motion, General Motors’ management took the position that payment for all workers’ compensation benefits, whether for future or past claims, was in the best interest of preserving the commitment of its labor force. Thus, the petition calls for the payment of all workers’ compensation benefits for any of its past or present employees, administrative expenses, and any workers compensation insurance premiums due, with exceptions for certain states, as noted below.

The petition before the court includes workers’ compensation liabilities for active plants and operations, as well as incurred claims for ongoing workers’ compensation benefits in many jurisdictions where operations have ceased. According to the petition, the magnitude of past claims is enormous:

As of the Commencement Date approximately 12,500 workers’ compensation claims were pending against the Debtors. The Debtors estimate that the aggregate amount payable on account of incurred but not yet paid claims and IBNR claims arising prior to the Commencement Date is approximately $1.47 billion. Of course, not all of this amount is immediately due, but rather would be payable throughout the succeeding months and even years. The Debtors estimate that cash payments for the next 12 months related to prepetition workers’ compensation claims will be approximately $240 million.

The formal request to honor these past payments is stated as follows:

A GM official commented that Alabama, Georgia, New Jersey, and Oklahoma were omitted because they have no current GM operations. However, Greg Krohm, Executive Director of the IAIABC notes, “Even if collateral or surety coverage is sufficient to pay all future claims, there is likely going to be at least a few weeks delay in initiating payments in these four states. Moreover, the adequacy of security at ultimate payout is not guaranteed.”

How quickly the court will respond to the petition is unclear. If the Bankruptcy Court of the Southern District of New York rules that evidentiary filings and hearings are called for, turning claims over to sureties or third party administrators will inevitably result in some interruptions in benefit payments. The company rationale to the court for priority preference for these claims is:

“If unopposed, this first day petition is likely to be granted. However, if creditors object the matter may be reopened,” according to Robert Aurbach, Principle, Uncommon Approach.

Chrysler sale   An interesting article regarding Chrysler’s workers compensation concrens. JEFF SWANEY FREE CONSULTATION 314-481-7778

This is an interesting case which states that Social Security Judges cannot act as doctors in denying a social security claim.
FREE CONSULTATION 314-481-7778

Social Security: Denial Of Benefits – Mental Disability – Medical Noncompliance

Pate-Fires v. Astrue (MLW No. 59069/Case No. 07-3561 – 22 pages) (U.S. Court of Appeals, Eighth Circuit, Bye, J.)

Where an administrative law judge denied the application for disability benefits and supplemental security income of a claimant with mental impairments based on his determination that she could perform her past relevant work as a retail store stocker, the medical evidence proved that the claimant suffered from a severe mental impairment and could not engage in gainful employment, and the ALJ’s contrary conclusion was not supported by substantial evidence because the claimant’s treating doctor found her to be disabled and the ALJ improperly disregarded the doctor’s opinion based on his own conclusion that the claimant’s drug use and refusal to take her medicine precluded a finding of disability.
Judgment is reversed and remanded.

‘Playing doctor’

“The ALJ’s conclusion Pate-Fires’s medical noncompliance was not justifiable and precludes a finding of disability is not supported by substantial evidence. Further, the ALJ’s determination Pate-Fires’s medical noncompliance is attributable solely to free will is tantamount to the ALJ ‘playing doctor,’ a practice forbidden by law.”

Improper basis

Dissenting opinion by Shepherd, J.: “I respectfully dissent from the majority’s conclusion that remand for an immediate award of benefits is the appropriate remedy in this case. At step four of the sequential evaluation process, the ALJ decided that Pate-Fires retained the residual functional capacity to perform her past relevant work ‘The majority finds that the ALJ reached this step-four conclusion in error. Specifically, the ALJ relied on an improper basis to reject Dr. Erby’s opinion, and substantial evidence did not support the ALJ’s conclusion that Pate-Fires’s medical noncompliance precluded a finding of disability’ To the extent the majority’s decision to reverse the judgment of the district court is based on these errors in the ALJ’s step-four analysis, I concur.”

Judgment is reversed and remanded.
y claim.

This is an interesting article on facet syndrome  which can be associated with whiplash injuries.

New law breaks promises made when workers’ comp began                     

Wednesday, March 23, 2005                                                 

Michael Maguire                                                            

By the time you read this, the governor will probably have signed the workers’ compensation bill. His signature will mark the betrayal of working people in Missouri who were made a promise nearly 80 years ago that they would be treated fairly if they agreed to accept workers’ compensation.

Keep in mind this is not a needed change. The statistics from our Division of Workers’ Compensation show that insurance companies are making record returns on their premiums, which means they are not having to pay out much.

It is also not an attempt to be friendly to employers, as the Missouri Chamber of Commerce and Industry argues, although any time the chamber speaks up when you are talking about people’s rights––look out. If that were the case, this change could have been handled like it has since I started practicing law in Missouri in 1986: by getting the two sides together and coming up with a solution. For the last three years, those representing employees have tried to get insurance companies and employers to work on their complaints. They refused to do anything meaningful, biding their time until they had control of the legislature and the governor.

A little history is worth remembering. When the workers’ comp system was set up––in exchange for having a required mechanism that would provide medical care if you were hurt doing your job, provide some money if you could not work and provide payments if you had some disability as a result of your injuries––workers gave up certain rights:

1. They lost their right to sue their employers in regular court.

2. They lost the right to pick the doctor who would treat them––as the employer (read that to mean insurance company) gets to pick.

3. Artificial caps were placed on the amounts a worker could receive for weekly benefits and for permanency benefits.

4. Employees could not be awarded any damages for just pain and suffering, although someone who loses a hand or a leg or suffers any kind of work injury will readily tell you it hurts like hell.

Part of the promise made so many years ago was a presumption in favor of the employee, meaning that if all things were equal, meaning it was a tie on the proof, that the decision should go to the worker. Employers knew that and signed off on that when they set up this system. Now because of
this manufactured business-unfriendly crisis, that presumption is gone. The burden of proof for a worker has been changed from the work being a substantial factor of the injury to the prevailing factor.

Administrative law judges have faithfully followed the promise and interpreted the law, and because businesses don’t like what that means, they are putting politics into the process. Those judges will now be reviewed every two years, and if they don’t come up to standards, which will be determined by––guess who––pro-employer types, then they are out of a job.

Never mind that employers have two bites of the apple if they don’t like a decision of the judge. They get to appeal to the Labor and Industrial Relations Commission. And if that does not work, they can appeal to the Court of Appeals. I consider this provision alone character assassination of the fine men and women who routinely handle thousands of cases as judges and legal advisors with great intelligence and diligence.

Part of what this cadre has done is to change lawyers’ fees. Yes, I am an lawyer. And, yes, I handle cases of employees. I admit I will be looking at cases more closely, because the new law says if the company makes an offer and it is rejected, then my fee can only be a percentage of the amount I recover above that offer. If I take a case and it takes little or no work, I have no problem with that theory. However, if the usual case occurs and the employer makes the case go on for months, requiring extra work and I have to try the case, then it is not fair to me or to the employee to limit that award.

I believe, and always have, that the law is supposed to be fair––not too much for one side or the other. I know the employers and their cronies in the legislature have not given back to employees their rights they gave up when they created workers’ comp. The promise has been broken, and the
owners get all the benefits. The workers get the shaft.

Don’t be surprised after all these changes go into effect that nothing happens to the premiums paid by employees. I have said all along that the cyclical nature of insurance companies investing premiums in the stock market has more to do with higher premiums than any $6-an-hour line worker filing a claim for carpal tunnel syndrome.

If you think this is wrong and unfair to the working man and woman, let the governor and our local senator and representatives and the lieutenant governor know, because they all supported this promise breaking.

Michael H. Maguire of Cape Girardeau is a lawyer.

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