By Mark A. Cantor
The Missouri Legislature and Governor Blunt revised the Worker's Compensation
Law. These changes take effect August 28, 2005.
Injury: Under the current law, to be compensable the employment must be "a
substantial factor in causing the injury." After August 28, 2005,
to be compensable, the accident must be "the prevailing factor in
causing the injury."
Prevailing Factor: the "primary factor, in relation to any other factor, causing both
the resulting medical condition and disability."
Accident: "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."
Occupational diseases and injuries due to repetitive motion "are compensable
only if the occupational exposure was the prevailing factor" in developing
Permanent Partial Disability: Permanent Partial Disability or permanent total disability shall be demonstrated
and certified by a physician. Medical opinions addressing compensability
and disability shall be stated within a reasonable degree of medical certainity.
In determining compensability and disability, where inconsistent or conflicting
medical opinions exist, objective medical findings shall prevail over
subjective medical findings. Objective medical findings are those findings
demonstrable on physical examination or by appropriate tests or diagnostic
Any award of compensation shall be reduced by an amount proportional to
the permanent partial disability determined to be a preexisting disease
or condition or attributed to the natural process of aging sufficient
to cause or prolong the disability or need of treatment.
Heart Attacks: "A cardiovascular, pulmonary, respiratory or other disease, or cerebrovascular
accident or myocardial infarction suffered by a worker is an injury only
if the accident is the prevailing factor in causing the resulting medical
condition." Repetitive Motion: An injury due to repetitive motion
is recognized as an occupational disease, but is compensable only if the
occupational exposure was the prevailing factor in causing both the resulting
medical condition and disability. Gradual deterioration, or progressive
degeneration of the body caused by aging or by the normal activites of
day-to-day living shall not be compensable.
Last Exposure: Under the former law, the employer who last exposed the employee to the
hazard prior to the claim being filed was liable. Now, the employer who
exposed the employee to the hazard prior to evidence of disability, is liable.
Objective symptoms: Black's law dictionary defines as "Those which a surgeon or
physician discovers from an examination of his patient; "Subjective
symptoms" being those which he learns from what his patient tells him.
Ideal Medical Opinion Language from Claimant's Perspective
Within a resonable degree of medical certainty and based primarily on objective
findings of [state objective finding] the prevailing factor of claimant's
injuries and resulting disability are [an injury caused by an unexpected
and single traumatic event on date] or [an occupational disease caused
by__]. Also within a reasonable degree of medical certainty, based on
my examination, objective findings, a review of the medical records, and
my training and practice in the field of medicine, Claimant is now at
maximum medical improvement from his work injury and has permanent partial
disability at the level of the (state body part) in the amount of percent.
(Claimant will require future medical care, including prescriptions for
his entire life- always a nice touch.)
I believe the changes in Missouri law, signed and promoted by our new Governor,
are wrong and will be found unconstitutional by Missouri's Supreme
Court. In the meantime, please call me if you have any questions about
any of these changes.
SETTLEMENT VALUES - Mark Cantor's Opinions Generally
Below is a generalized summary of the settlement value of cases at the
division, based solely on my experience. Obviously, the disparity between
ratings is huge in order to achieve these settlements. For instance, a
back strain may be rated at 0% PPD by an employer's doctor and 17.5%
by a Claimant's, in order to settle at 7.5%. The Claimant's doctor
is at a disadvantage, having seen the Claimant only one time and for the
purposes of an Independent Medical Exam.
Operated Carpal Tunnel Cases, roughly 17.5 of each wrist, 10 % load and
one to two weeks disfigurement if endoscopic. Open surgery is 3-5 disfigurement,
20 to 22.5 percent. The dominant hand is worth slighty more. Defense will
rate at one to three percent, no disfigurement, Claimant at 27.5 to 35
% and define the scar.
Finger injuries, even if fractured but with a good recovery, may not need
a rating and you can save your client a few hundred dollars. Most are
worth in the 20 to 30% range, depending on range of motion, sensation,
disfigurement. (Fingers are cheap so always negotiate at the next higher
level.) If you think the injury is solely to the finger, and if you have
all the medical records, try to get the case settled at prehearing by
bringing your client. If the injury is severe or involves multiple fingers
and you want to resolve the case at the 175 week level, a rating will
As a general rule, I analyze settlement of simple fractures of long bones
without complication or surgery at 20% and move up or down depending on severity.
Similarly, with surgeries I generally begin at 25% and move up or down
depending on severity. Carefully read all surgical reports. For instance,
an endoscopic debridment of a knee will generally settle at 17.5 % to
20%, a partial medial mesectomy at 20 % to 25%, large medial mesectomy
25% to 30%, loss of patella 35 to 50%, etc...
Surgically repaired rotator cuffs require a careful reading of the operative
report. Was it a full thickness tear, partial, bone involvement etc...
Generally I start my analysis at 30 percent of 232 and generally move
up depending on the severity, range of motion.
Spine injuries offer a wide range of settlement values. Surgically repaired
discs begin at 25% of the body as a whole (100 weeks) and only move up
depending on the result. Add at least 15% ppd for each additional level
of operated disc. Spinal injuries and fusions are worth more. Thoracic
discs are dangerous and difficult to repair and even without surgery a
Claimant can be permanently and totally disabled. Any spine surgery should
also have a disability rating from the pain management doctor. I have
found these doctors to be excellent for the Claimant and obvious liars
for the defense. Combined with pain complaints, a ppd rating of 20% from
the surgeon can easily become a permanent total disability claim when
combined with good testimony from the pain management doctor and a vocational
Compression fractures vary and are worth approximately 22.5% for a moderate
compression to 30% for severe compression.
Abdominal and inguinal hernias with mesh routinely settle at 5% of the body.
The defense likes to label small injuries as "soft tissue" injuries.
I like to point out that their brain is "soft tissue" as is
their heart and lungs. Concussions are worth 15 to 20% at the 400 week
level, depending on residual complaints such as headaches, tinnitus, etc...
All cardiovascular cases require a causation evaluation and report.