Written by Anna M. Campbell and Phillip A. Tatlow
Changes to the workers’ compensation law effective January 1, 2014, greatly enhance the benefits available to employees and their families. New subsection 11 was added to RSMO §287.020 defining occupational diseases due to toxic exposure to include: mesothelioma, asbestosis, berylliosis, coal worker’s pneumoconiosis, brochiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous leukemia, and myelodysplastic syndrome.
For all claims filed on or after January 1, 2014, for occupational diseases due to toxic exposure that results in permanent total disability or death, an employee is entitled to such amount due to employee during employee’s life based upon an award of PTD and death, however, these PTD and death benefits shall only be paid when the enhanced benefits have been exhausted. RSMo. §287.200.4 (Supp. 2013).
The enhanced benefit for occupational disease which result in permanent total disability or death due to toxic exposure (not including mesothelioma) is an amount equal to 200% of the state average weekly wage (SAWW) as of the date of diagnosis for 100 weeks. The enhanced benefit for occupational disease due to toxic exposure that is diagnosed to be mesothelioma, is an amount equal to 300% of the SAWW for 212 weeks, if the employer elected to accept liability for mesothelioma under the Workers’ Compensation Act and agrees that this is the employee’s only remedy to sue, in workers’ compensation.
If an employee dies before the enhanced or additional benefits have been paid, the additional benefits are payable to the employee’s spouse or children, in addition to the benefits under RSMo. §287.240. If there is no surviving spouse or children and the employee has received less than the additional benefits, the remainder shall be paid in one single payment to the employee’s estate.
These enhanced benefits will not affect any of the employee’s other benefits under the Statue ie., medical treatment at employer’s expense.
This newly created category of toxic occupational diseases under the Statute allows employees to recover increased benefits that they would not be able to recover with other types of accidental injuries. It appears the legislature is taking employees’ exposures to these diseases very seriously.
In cases such as asbestosis mesothelioma, before §287.020 was amended, many claimants or heirs of the claimants had to decide whether to file a workers’ compensation claim for benefits that were unreasonably low, or file a civil lawsuit outside of workers’ compensation against the manufacturers of asbestos and products containing asbestos and waive the claim against the employer. Such a civil suit often resulted in large monetary settlements and judgments, but resulted in little to no recovery against the employer. Now, enhanced benefits, or a greater monetary amount is recoverable making workers’ compensation claims against the employer more desirable. Workers’ compensation claims are generally simpler with less technicalities than in civil lawsuits. In addition, the change to the Statute allows survivors of mesothelioma victims to recover the benefits, should the employee die before all the benefits are paid.
Also important to note under the Act is that if the employer has not elected coverage under workers’ compensation for mesothelioma, the Statute says that the exclusive remedy provisions under §287.120 do not apply. Therefore, the employee would be allowed to sue the employer in Circuit Court for damages under civil law in such circumstances. This could allow an employee or his/her heirs to seek damages for pain and suffering, life style changes, wrongful death among other damages.
No cases have been heard yet on appeal interpreting the above Statute, but this area will likely result in appeals in the future as to how to apply the Statute.