Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This amendment clarifies the procedure for
seeking commission approval of a lump sum settlement or commutation, provides
guidance to parties seeking modification of final awards, and establishes new
procedures for disputes pertaining to future medical treatment.
(1) The Division of Workers' Compensation
shall have and exercise the following powers, duties and functions on behalf of
the commission in the administration of the Workers' Compensation Law, section
287.410,
RSMo:
(A) The receiving and filing of all
reports of injury, claims for compensation, answers to claims for compensation,
receipts, notices of termination of compensation and all other forms,
instruments and documents required to be used or filed in connection with
Workers' Compensation claims before the time of the issuance of a final award,
order or decision of any administrative law judge;
(B) The receiving, filing, processing and
recordkeeping of all exempted employers' acceptances of the Workers'
Compensation Law and withdrawals of exempted employers' acceptances of the
law;
(C) The duties and
responsibilities given the commission by the legislature under section
287.280,
RSMo relative to employers who carry their own insurance
(self-insurers);
(D) The duties and
responsibilities given the commission by the legislature under section
287.220,
RSMo relative to the Second Injury Fund;
(E) The duties and responsibilities given the
commission by the legislature under section
287.810,
RSMo relative to a change of administrative law judge; and
(F) All documents and instruments referred to
in subsections (1)(A)-(E) and required to be filed by either the employer or
employee shall be filed with the division.
(2) Original Hearings-Administrative Law
Judges, Authority and Power.
(A) All original
hearings in contested cases shall be heard by the administrative law judges of
the division. In any case which has been regularly assigned to an
administrative law judge by the director of the division, that administrative
law judge shall have full power, jurisdiction and authority to issue all
interlocutory orders necessary to the proper and expeditious handling of the
case.
(B) Those interlocutory
orders, including formal dismissal of unnecessary parties, shall be entered in
the minutes of hearings and shall become final upon the issuance of a final
award by the administrative law judge.
(C) An administrative law judge shall not
have any authority to change or modify a final award issued by an
administrative law judge after the lapse of twenty (20) days from the date of
issuance of an award or after an application for review (see
8
CSR 20-3.030 ) has been filed with the commission in
connection with any final award, order or decision of an administrative law
judge.
(D) Any administrative law
judge shall have authority and power to approve motions for settlement of
workers' compensation claims; provided, the claim is pending in the division
for adjudication. No administrative law judge shall have authority to approve
settlement of workers' compensation claims pending before the
commission.
(3) Original
Hearings-Compromise Settlements.
(A) No
original hearings in contested cases shall be heard by the commission or any
member of the commission. No compromise settlement of a workers' compensation
claim shall be accepted for consideration by the commission or any of its
members for approval if the claim is pending in the division.
(B) All motions for settlement of claims
pending before the commission shall be submitted to the commission for
approval.
(C) All compromise
settlements of workers' compensation claims pending in the circuit or appellate
courts shall be submitted to the commission for approval. Before filing the
settlement for consideration by the commission, the parties seeking to settle
the claim shall first petition the court for an appropriate order remanding the
matter or otherwise restoring jurisdiction to the commission for consideration
of the settlement. The commission cannot act on any request to consider a
settlement until the court so disposes of the matter.
(4) Modifying Benefit Awards. The commission
shall have sole authority to modify final awards allowing benefits to employees
or dependents. The commission may modify benefit awards from time-to-time upon
motion by an interested party. All motions for modification of final awards
shall be made to the commission and the movant shall have the burden to submit
proof of the change of condition or status of the parties receiving the
benefits, and will also be responsible for providing to the commission, with
the motion, contact information for the employee and/or each dependent affected
by the motion, including current addresses. Moving parties are advised that if
the commission is unable to provide due notice of the sought modification to
each interested party, the commission will not take any action to modify the
award. Proof of the remarriage of the dependent surviving spouse shall be made
by filing a copy of the marriage license of the remarried dependent surviving
spouse or affidavit of the surviving spouse admitting remarriage. Proof of the
death of the employee or any dependent shall be made by filing a copy of the
death certificate of the employee or dependent. Evidence of the remarriage of
the dependent surviving spouse or the death of the employee or dependents may
be made by deposition or other evidence as the commission may
specify.
(5) Lump Sum Payment of
Compensation (Motion for Commutation).
(A) A
motion for commutation of compensation due may be filed with the division or
one of its administrative law judges at the time a hearing is held and evidence
shall be heard on the motion. If payment of compensation is awarded by the
administrative law judge, a decision shall be made by the administrative law
judge relative to the motion for lump sum payment.
(B) The commission has jurisdiction over any
motion for commutation in all cases in which the award has become
final.
(C) Where the motion for
commutation is not jointly agreed by the parties, the moving party has the
burden to:
(1) file a copy of the motion for
commutation with the commission; and
(2) serve a copy of the motion to all
interested parties.
(D)
When interested parties are notified of the motion, they may file a response
with the commission upon where the motion is pending, within twenty (20) days
of notification. If no objection is filed, the commission will review the
motion upon the facts and evidence submitted by the movant and make a decision
without ordering a formal hearing.
(E) If objections to the commutation are
filed, the commission may remand the matter to the division for a hearing. Upon
return of the file, the commission shall review the evidence and render its
decision.
(F) The commission shall
send an order allowing or denying the motion by United States mail to all
interested parties.
(G) A
commutation of compensation due a minor dependent shall not be approved or
ordered until a legal guardian for the dependent has been appointed by the
probate court of the county in which the dependent resides and proof of the
appointment of a guardian and a certificate of the probate court certifying
that the guardian has qualified shall be filed with the commission.
(H) In cases where there is a prior award of
benefits or a duly approved settlement that has finally resolved the parties'
respective rights and duties with regard to periodic benefits payable in the
claim, the commission cannot consider a joint motion for payment of a lump sum
as a compromise settlement under section
287.390,
RSMo, unless the parties are able to identify, in their motion, a legitimate,
presently justiciable dispute, over which the commission would have
jurisdiction. In the absence of such dispute, and where the parties desire
merely to close out or redeem the remaining obligations under the award or
settlement via payment of a lump sum, the commission will treat the motion as
one for commutation pursuant to section
287.530,
RSMo.
(I) Where a motion for
commutation is jointly agreed by the parties, the commission will consider the
motion provided it includes the following:
1.
For motions to commute permanent total disability or death benefits:
A. The employee or dependent's date of birth
and presumed life expectancy, including, in the event the parties are
requesting that the commission presume a life expectancy that substantially
differs from that indicated in the most recent edition of the National Vital
Statistics Reports published by the U.S. Department of Health & Human
Services, a written opinion from a medical professional explaining why the life
expectancy so differs;
B. The
discount rate and actuarial assumptions utilized by the parties in calculating
the present-day or commutable value of the future installments that may be
expected under the award or settlement;
C. The specific facts and circumstances that
would support a determination by the commission that commutation will be in the
best interests of the employee or dependents; or will avoid undue expense or
undue hardship to either party; or that the employee or dependent has removed
or is about to remove from the United States; or that the employer has sold or
otherwise disposed of the greater part of its business or assets; and
D. In the event the parties are seeking
commutation on the basis that such will be in the best interests of the
employee or dependents, or will avoid undue expense or undue hardship to either
party, the specific facts and circumstances that would support a determination
by the commission that unusual circumstances exist in the case that warrant a
departure from the normal method of payment; and
2. For motions to commute open future medical
benefits where the underlying award or settlement does not expressly preserve
to the employer/insurer the discretionary right to close future medical
benefits by funding an annuity or Medicare Set-Aside trust account-
A. The employee's date of birth and presumed
life expectancy, including, in the event the parties are requesting that the
commission presume a life expectancy that substantially differs from that
indicated in the most recent edition of the National Vital Statistics Reports
published by the U.S. Department of Health & Human Services, a written
opinion from a medical professional explaining why the life expectancy so
differs;
B. The medical expenses
incurred by the employee in connection with the claim for at least the last
five (5) years, if any, listed by date, provider, treatment, and
amount;
C. The discount rate and
actuarial assumptions utilized by the parties in calculating the commutable
value of the future installments of medical expenses that may be expected under
the award or settlement;
D. Whether
the employee is currently, or reasonably anticipated to become, within the next
thirty (30) months, a Medicare beneficiary, and if so, whether Medicare has
made any conditional payments for medical treatment related to the work
injury;
E. If a Medicare Set-Aside
trust account is proposed to commute the future installments of medical care,
whether all reasonably anticipated future medical expenses are of the type that
will be covered by Medicare upon exhaustion of the commutation funds, or, in
the alternative, an identification of what additional sums are being paid to
cover expenses not covered by Medicare, including any evidence, attestation, or
other information that would support a finding by the commission as to the
sufficiency of such additional sums;
F. A signed statement from the employee
memorializing his or her understanding and agreement that the funds from the
proposed commutation should be used exclusively for the purpose of paying for
medical treatment related to the work injury, and that failure to expend the
commutation funds for such purpose may jeopardize the employee's later ability
to obtain any financial assistance (via Medicare, private insurance, or
otherwise) for future medical expenses related to the work injury;
and
G. The specific facts and
circumstances that would support a determination by the commission that
commutation will be in the best interests of the employee or dependents; or
will avoid undue expense or undue hardship to either party; or that the
employee or dependent has removed or is about to remove from the United States;
or that the employer has sold or otherwise disposed of the greater part of its
business or assets.
(6) The commission retains jurisdiction over
disputes pertaining to the parties' respective rights and obligations with
regard to future medical treatment whenever a final award or settlement in the
case leaves the issue of future medical treatment "open" or otherwise
indeterminate. See State ex rel. ISP Minerals, Inc. v. Labor & Indus. Rels.
Comm'n, 465 S.W.3d 471 (Mo. 2015). The commission will only consider issues
falling within its statutory authority, such as whether a disputed treatment is
reasonably required to cure and relieve the effects of the work injury for
purposes of section
287.140,
RSMo, and will not entertain requests to "compel" or "enforce" any award or
settlement, because such powers are reserved to the judiciary.
(A) Upon receipt of a motion identifying a
dispute pertaining to future medical treatment, the commission will allow
opposing parties to respond within twenty (20) days from the date of the
commission's correspondence acknowledging the motion; provided, however, that
the commission, in its discretion, may extend or accelerate the period for
filing such a response. If the commission determines that there is a presently
justiciable dispute between the parties over which the commission would have
jurisdiction, and that the movant has alleged a prima facie claim for relief of
a type that the commission would be authorized to provide, the commission will
remand the matter to the division of workers' compensation for a hearing to
take evidence on the parties' allegations set forth in the motion and
responsive pleadings, if any. Otherwise, the commission may dismiss the
motion.
(B) Parties will be
entitled to reasonable discovery in advance of the hearing. Any disputes
pertaining to discovery should be brought to the commission's attention for a
ruling. The administrative law judge will hold in abeyance any action in
connection with the commission's order of remand until the discovery dispute is
resolved. The administrative law judge will hear and rule upon all evidentiary
objections made at the hearing, and will allow the proponent to make an offer
of proof where evidence is ruled inadmissible. At the close of the hearing, the
division will return the file to the commission for a determination of the
disputed issues.
(C) Mediation may
be pursued at the discretion of the administrative law judge assigned to the
matter. If such mediation is successful, the administrative law judge may sign,
if the parties so request, an informal memorandum of understanding outlining
and memorializing the parties' agreement, which should be executed by all
parties and/or their attorneys; provided, however, if the parties desire
approval of a formal settlement agreement resolving the disputed issue of
future medical treatment, such should be forwarded to the commission for
approval pursuant to section
287.390,
RSMo. Any formal settlement agreement should be submitted to the commission in
accordance with the guidelines for compromise settlements set forth in these
rules.
(D) If, at any time, the
dispute becomes moot, the parties are directed to advise the commission, and
also the division in the event proceedings are pending in connection with an
order of remand from the commission, that no further action is necessary in
connection with the motion, whereupon the commission will dismiss the
motion.
(E) Where the parties'
dispute pertains to future medical treatment which is alleged to be imminently
necessary to prevent harm to the health or well-being of the employee, the
commission will entertain a request to hear the dispute on an expedited or
hardship basis. Such request should include a written opinion from a medical
professional explaining why the requested medical treatment is imminently
necessary to prevent harm. Where the commission grants such expedited review,
the commission may issue an order resolving the dispute based on its own review
of the documentary evidence submitted by the parties, without the formality of
ordering an evidentiary proceeding before the division. To be considered, such
documentary evidence should be certified or otherwise sworn to be authentic via
affidavit.
(F) All parties to
awards or settlements are hereby advised that the commission generally
disfavors the practice of ordering further proceedings in open future medical
cases except where strictly necessary; and that the process set forth in this
rule does not constitute an invitation or opportunity to relitigate issues in
the case that were previously adjudicated or stipulated. Accordingly, if the
record before the commission reveals that any party has failed, without
reasonable ground, to fully and faithfully comply with its obligations under
the law pursuant to an award or settlement previously entered in the case, the
commission may assess an award of costs and attorney's fees against said party,
pursuant to section
287.560,
RSMo. All parties are thus strongly encouraged to resolve their disputes
without recourse to the commission except in those extraordinary cases where
intervention by an impartial, fact-finding tribunal is necessary.
*Original authority: 286.060, RSMo 1945, amended 1947,
1980.