The Law Office of Kurt H King

February 1, 2013

Protection of Customer Contact Information Requires a Non-Compete Agreement

Filed under: Litigation — kurthking @ 5:38 pm
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A recent case affirms Missouri employment law in holding:

1)  An ex-employee has the right to compete with the ex-employer if there is not a valid covenant-not-to-compete (CNC) agreement;

2)  Customer contacts and customer lists are not protected as a trade secret or confidential relationship–a valid CNC is required.

The Southern District of the Missouri Court of Appeals so held in Central Trust & Investment v. Kennedy, (opinion filed 01.24.2013), following the Missouri Supreme Court’s lead in Western Blueprint v. Roberts, 367 S.W.3d 7, 18 (Mo. banc 2012).

The CNC in this case having been vitiated by sale of the company to Central Trust & Investments, there was no valid CNC in effect.  Therefore the employee was free to use such customer information and lists from his work at the company before its sale.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

General Litigation, Personal Injury, Workers’ Compensation, Bankruptcy, Family Law

http://www.kurthking.com

January 31, 2013

The “State” of the Insolvent Second Injury Fund in Missouri–Skirvin v. Treasurer of the State of Missouri

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 9:33 pm
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Missouri’s Second Injury Fund pays part of the disability of injured workers who suffer re-injury.  The theory being that otherwise employers would be far less likely to hire workers that have already been hurt.  Since employers presumably pay less on work comp claims than they would if injured workers could sue for their injuries in circuit courts with jury trials, punitive damages and the whole nine yards, lawmakers have saddled employers with the cost of funding the Fund so it can pay the “load factor” part of permanent partial work comp awards, as well as on permanent total disability awards.

A few years ago, in an effort to reduce the costs of work comp insurance for Missouri businesses, lawmakers capped the “surcharge” at 3%–thus the most a business would have to pay into the State for the Fund each year would be no more than 3% of the total amount of its net work comp insurance premiums.  This effort to appease business backfired as that amount of surcharge falls far short of an adequate supply of money to the Fund for payment of the continuous flow of work comp awards against the Fund.

By and large, due to lack of funding, the Fund has not paid any Permanent Total Disability awards dated after March 6, 2011.  There are said to be at least sixty cases on file in courts throughout Missouri seeking orders that the Fund pay the injured worker the amount awarded that worker by the Division of Workers Compensation.  One of those cases recently reached the Western District of the Missouri Court Appeals, where it was decided by Judges Ahuja, Howard, and Martin.  The case is Skirvin v. Treasurer of the State of Missouri, WD75541 (opinion filed 01.22.2013).  At the trial which led to this appeal, Skirvin won an order (on a writ of mandamus) that the Fund pay the money awarded by the Division of Workers Compensation on his permanent total disability claim where the “last” part of the disability combined with  disability from previous injuries to cause the employee to be totally disabled.  The last employer picks up the tab for the “last” disability but the Fund is charged with payment for the remainder of the workers’ disability.

Having lost  at trial, the Fund appealed to the Western District.  In doing so, the Fund admitted that it is insolvent–bankrupt–and so it stopped paying permanent total injury awards as of March 6, 2011.  Evidence at trial showed that the Fund then owed $21 million but had only $6.5 million with which to pay.   Thus, the Fund was upside down $15 million.   The Fund also testified to annual income of $43 million, of which $40 million was paid out within six months, leaving only $3 million for the remaining six months.  This has been going on for nearly two years now and the hole yawns blacker and deeper.

No way the Fund can pay the past due awards pro rata as there are significant differences in how the claims affect employee Social Security, the number and amount of claims constantly fluctuates, and it simply would not be fair.  The alternate, to pay on a “first come, first serve” basis, would quickly break the bank.  Missouri’s lawmakers should have raised the legal limit on the surcharge or provided additional funding but they have not.  The economic times of late have not led to surpluses, and who wants to vote for representatives who pass laws which increase your work comp costs and cut your thin profits?

What the court of appeals decided in the main opinion by Judge Martin is that the trial court erred in ordering the Fund to pay Skirvin as the Fund lacks the money to pay him and the other claims like his.  Skirvin did not request a pro rata payment of his and similar claims and that would be nearly impossible to accomplish.  But while the court of appeals could not help Skirvin, they could send his case to the Missouri Supreme Court and so they ordered it transferred.  If that high court hears this case, it may do so expeditiously.  Meanwhile, Missouri lawmakers may realize that they must act now or the supreme court may fix things in a way that they do not like.

Judge Ahuja agreed with the transfer to the supreme court, although he would simply have reversed the trial court for the reasons that, (1) the Fund is insolvent and cannot pay all the judgments outstanding against it, and (2) Skirvin did not request  a pro rata payment.  [Maybe a request to put the Fund into receivorship is another option.]

Finally, Judge Howard in his dissent makes several good points, including that the Fund is just an account of the State of Missouri, and the State has the money or can raise it to pay the outstanding claims against the Fund.  The State also has full power to increase the surcharge or otherwise fund the Fund so that it has sufficient money to pay its debts.  So, affirm the trial court and uphold Skirvin’s order that the Fund/State of Missouri pay him what it owes him by law.

Embarrassing for a STATE to say to an injured employee, in effect–

“Hey, here is your work comp judgment and by the way the Fund is not going to pay you.  Sorry you may starve.  Hope you find a good homeless shelter or maybe your spouse can float all the bills by herself.”  Does the state let tax debt ride indefinitely when a taxpayer says, “Can’t pay you, I’m almost clear broke?”

Perhaps the Missouri Supreme Court will decide this case and turn up  the heat on our lawmakers who knew, or should have known, they were drowning the Fund and injured employees when they capped the surcharge at 3%.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Workers’ Compensation, Personal Injury, Bankruptcy, General Litigation and other matters

http://www.kurthking.com

January 29, 2013

Pre-impact Terror and Actual Knowledge for Punitive Damages in Aircraft Product Liability Case

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 6:09 pm
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The Eastern District of the Missouri Court of Appeals recently issued its opinion ED97375 in Delacroix v. Doncasters, Inc. (01.15.2013), an airplane product liability case.  That court affirmed $4 million of compensatory damages as to each of the five persons killed in the 07.29.2006 crash of a sky-diving plane, but denied plaintiffs $28 million of punitive damages also awarded by the Franklin County jury in a trial bifurcated as a sanction against Doncasters,Inc., for late production of 8000 documents to plaintiffs’ counsel.

Besides the bifurcation sanction, this case holds interest in at least three areas:

1.  Court agrees that plaintiffs are entitled to recover for pre-impact terror during the 52 seconds that it took the plane to hurtle to ground after a defectively coated compression turbine blade failed and destroyed the right engine.  Simply put, the court found the passengers killed by the crash began to suffer injury–terror, distress–when the engine failed and before the physical impact brought death.  Therefore, no error in submitting the case to the jury using MAI 5.01 with language allowing award of damages for the damages that the deceased persons suffered between the time of injury and death.

2.  Plaintiffs sought to offer evidence of twenty-six similar blade failures.  However, the court excluded all, finding cause of blade failure in those incidents did not match that of the blade at issue in this case–substandard coatings which allowed corrosion of the also substandard base metal of the blade.

3.  The court of appeals took away the jury’s $28 million award of punitive damages, finding the testimony of plaintiffs’ experts failed to show the required actual knowledge by the defendant of the defective condition.  Plaintiffs’ experts testified that the company knew that the blades failed to pass–twice–FAA 150 hour endurance tests  in the subject engine type and therefore knew the blades were defective prior to 1986.  Indeed, the company’s representative testified that defendant Doncasters, Inc., knew the blades were defective but claimed to have only first so learned in 2001, some time after Doncasters bought the company that sold these defective blades in 1996.   Why were the blades not recalled and/or warnings sent out by Doncasters after purportedly discovering defects in 2001?

In any event, the dissenting judge opines that plaintiffs’ expert testimony certainly satisfied the burden of proof on actual knowledge of the company that its blades were defective due to inferior anti-corrosion coating and substandard base metals which never passed FAA endurance tests.  Indeed, the jury surely thought that Doncasters’ fault so serious as to be deserving of $28 million in punitive damages to punish it and deter others from such reckless disregard for the safety of others.   A strong point of the dissent is that the jury is free to disbelieve Doncasters’ claim it first learned of the defective condition in 2001, and plaintiffs’ experts testified to defendant’s actual knowledge as being prior to 1986.  [Keep in mind, that the purchaser of the stock of a company, as Doncasters presumably did in this case, generally renders the purchaser liable for the liabilities of the company it so purchased.]

Interesting case handled for the plaintiffs by good lawyers–Gary and Anita Robb of Kansas City.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Workers’ Compensation, General Litigation

http://www.kurthking.com

January 24, 2013

Attorney’s Lien Trumps Medicaid Reimbursement Lien Under Missouri Workers’ Compensation Law

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 11:05 pm
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In Lake v. Ronald Levy, Director of Missouri Department of Social Services, WD74306 (filed 01.15.2013), the Western District held the Medicaid reimbursement lien asserted by the Department of Social Services inferior to the attorney’s lien of counsel who brought the workers’ compensation claim.  The court of appeals finds this to be fair since only by the efforts of the injured employee’s attorney did it come to pass that there was any money to reimburse the state.  To have held the Medicaid lien superior would (at least in this case where the medical expenses part of the settlement monies paid by the employer/insurer was no more than the money for the employee’s medical expenses) leave counsel with little or no incentive to recover such medical expenses merely to benefit the state with reimbursement for Medicaid medical payments for treatment of the injured employee.  From counsel’s perspective, if you aren’t going to get paid, why do the work?

Here the employee’s counsel settled the work comp claim and then filed suit in Missouri circuit court seeking in equity to enforce his attorney’s lien against the disputed medical expense portion of the workers’ compensation settlement.  Ultimately, the trial judge ruled in favor of Social Services on motions for judgment on the pleadings (the question before the court being strictly one of law), giving the medicaid reimbursement lien priority over the attorney’s lien provided for in Missouri statute 484.130.  This ruling denied the attorney’s claim in equity for a 25% fee of the $45,001 medical expense portion of the work comp settlement.  Being so denied fees of $11,250, the lawyer for the injured employee did what lawyers do and appealed to the court of appeals.

On appeal to the Western District of that court, the parties both focused on subsection 7 of section 287.266 of Missouri Workers’ Compensation Law.  That subsection reads:

“This debt due the state shall be subordinate only to the fee rights of the injured employee’s attorney pursuant to this chapter, and the state shall not be required to pay any portion of the fees or costs incurred by the employee or the employer.”

The attorney argued that the first portion of subsection 7 clearly gives his attorney’s lien  priority over the state’s medicaid reimbursement lien.  In straight-forward fashion, the court of appeals agreed, noting that without priority the attorney would have no reason to recover medical expenses in cases such as this one where no money would be left for the attorney as the medical reimbursement lien met or exceeded the amount of the medical expense portion of the work comp settlement.  The state, however, argued  that giving the attorney’s lien priority constitutes a payment of fees or costs in violation of the last part of subsection 7.  Nevertheless, the court of appeals ruled for in favor of the attorney as the money due the attorney on the lien for his fee is his money and not the state’s money.  Therefore, the state is not “paying” the attorney’s fees. Victory for the attorney!

This case puzzles in that the undersigned’s experiences with Medicaid in personal injury cases is that its third-party subrogation office will consider and agree to a pro-rata reduction of the amount of its lien and will reduce its share a further percentage to factor in the attorney’s efforts in pressing forward the claim or lawsuit that resulted in recovery of funds from which Medicaid is reimbursed.   Perhaps a harder stance was taken by the state in this case in hopes that the above language of subsection 7 would afford the state more leverage and reason not to reduce medicaid reimbursement liens by an amount for the claimant’s  attorney–at least in workers’ compensation cases.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Missouri Workers’ Compensation Claims, Personal Injury, General Litigation

http://www.kurthking.com

January 16, 2013

Discharge in Bankruptcy Of Debts Ordered Paid in a Divorce or Legal Separation Setting

Filed under: Divorce,Family Law,Litigation — kurthking @ 11:03 pm
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While no longer “breaking news,” cases continue to proceed to court over what happens to an ex-spouse who fails to pay debt he/she was ordered or agreed to pay in connection with a divorce or legal separation proceeding under Missouri law.

One such recent case is Henderson v. Henderson, No. ED98357 (Eastern District Slip Opinion Filed December 26, 2012).  There the former wife filed a motion to hold her ex-husband in contempt for failure to pay a line of credit debt that he agreed to pay in a dissolution settlement agreement and the resulting court judgment of dissolution of marriage.   Instead of paying off the debt as ordered, this man filed Chapter 7 bankruptcy and was granted a discharge of that debt–meaning that the creditor could no longer collect against the ex-husband.

But the creditor could proceed against the former wife to the extent that she was jointly obligated on the debt.  The opinion indicated that the line of credit creditor was attempting to collect from wife but apparently had not yet been successful in those attempts.  There is no mention of the creditor having sued or obtained a judgment against the former wife.  However, the former wife requested an award for attorney fees and costs in her case to hold her ex-husband in contempt of court.

At the trial, the judge  found that the ex-husband was not in contempt for non-payment of the line of credit indebtedness because, “the balance due US Bank is not owed by [Husband] to [Wife] or to US Bank.”  (See page 4.)  Nor did the trial court award attorneys fees and costs on the former wife’s claim for such in the contempt case.  On the other hand, the trial court did order the ex-husband to pay wife [not US Bank]  $9,600 which turned out to approximate roughly half of the balance of the line of credit discharged in the ex-husband’s Chapter 7 bankruptcy.

Both parties appealed the trial court’s decision, the ex-husband complaining that he should not have to pay former wife $9,600 when she never paid a dime of the balance to US Bank on the line of credit.  And, wife of course charged the trial court with error in not holding the ex-husband in contempt to force him to pay her all the line of credit debt and her attorneys fees and costs incurred in the contempt case.

On appeal, the Eastern District easily found in favor of  the former wife in holding the entire Line of Credit is nondischargeable pursuant to 11 USC section 523 (a)(15) which provides that a Chapter 7 bankruptcy discharge–

“[D]oes not discharge an individual debtor from any debt–

. . .

(5) for a domestic support obligation;

. . . [or]

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation

or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a

governmental unit.”

And this is apparently true even though the ex-spouse fails to file any objection to discharge of the marital debt in the bankruptcy case as the former wife failed to file any such objection to her ex-husband’s bankruptcy case.

The appellate court then summarily rejected the ex-husband’s argument that the former wife failed to make a sufficient case of contempt, and ordered the case sent back to the trial judge for reconsideration of whether husband was in fact in contempt of court and the former wife’s attorney’s fees.

So, this case makes clear that one spouse–the former wife in this case–need not file objection in the other spouse’s bankruptcy case in order to prevent discharge of such marital debt.  Rather, the “marital debt” is not dischargeable even when no objection to discharge is filed.

And while that reasoning seems clear, what about the holding that the debtor owes his or her former spouse the full amount of the discharged debt when that former spouse has not paid a penny of the debt in issue and has not even been sued to collect the debt, and there is no judgment against her to pay any of the debt?  For if the ex-husband now pays the full amount of the debt to the former wife  to avoid jail for contempt of court, there remains no assurance that former wife will use all or even part of those monies to pay the creditor.  Or, perhaps, the former wife negotiates with the marital debt creditor so that she pays only part of the debt in return for a full release of the debt, and by so doing pockets some of money for herself.  The trial court in this case may have been best situated to assess how “judgment proof” the former wife is and craft judgment accordingly so that a windfall to the former wife did not result at the unfair expense of the ex-husband.

As a practical matter, the ex-husband may find himself better off to negotiate quickly with US Bank to pay 50 cents on the dollar, for example, in order to get a full release of himself and his former wife on the marital line of credit debt.  Maybe that is the real lesson in this case–assuming he has the money to pay.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri; 816.781.6000

Domestic Relations Law and General Practice–Divorce, Modifications, Paternity, Child Support, Custody, & Visitation

http://www.kurthking.com

January 8, 2013

Missouri’s Position on Statutory Damage Caps in Wrongful Death Cases Involving Medical Malpractice?

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 9:53 pm
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Years ago, Missouri lawmakers did an end run to block juries from setting the final amount of non-economic damages due a  wrongfully injured person as a result of improper health care.  To do so, they passed what is now Missouri statute 538.210, which lets the jury determine fault and the amount of damages, but then requires the judge (unbeknownst to the jury) to cap the amount of non-economic damages at $350,000 as of this post.

This fix lasted until July 31, 2012, the date of the Missouri Supreme Court’s opinion SC91867 in Watts v. Lester E. Cox Medical Center, now found at 376 S.W.3d 633.  In that case, Missouri’s Supreme Court struck down damage caps  in a medical malpractice case involving a child born brain damaged, but who survived to need care for life.

In deciding Watts, the high court  found that the Missouri Constitution first adopted in 1820 mandates the right to jury trial as it previously existed at common law.  Since no such damage caps existed then in common law, the damage cap statute first implemented over a century later unconstitutionally curtailed the right to trial by jury in Missouri.  Therefore, the damage cap statute violates the Missouri Constitution and is consequently a nullity as to such common law causes of action.   Good-bye damage caps in medical practice cases?–not quite.

The question remains after Watts: do the caps still apply  where substandard care from a health care provider results in the patient’s death and suit is brought for damages as a wrongful death claim?  On this point, we find the same Missouri Supreme Court deciding in April 2012 (just three months before Watts) that such damage caps are alive and well–and lawfully applied  by the trial judge to reduce the amount of non-economic damages awarded by the jury in a wrongful death case where improper health care caused the patient’s death.  See Sanders v. Ahmed, at 364 S.W.3d 195 (see page 204).

This begs the question, why does the cap apply when the patient dies but not when he or she lives?  The rationale given in Sanders is that wrongful death actions did not exist in common law adopted by the State of Missouri through its Constitution of 1820.  Rather, the Missouri legislature later statutorily established wrongful death as a cause of action in Missouri, and that not until about 1855 according to the court in Sanders.   Thus, it seems that the high court holds that the right to an unrestricted jury verdict of damages due the plaintiff follows only if the cause of action existed in the common law of this state as of 1820.  As wrongful death actions did not then exist in common law, being cast by state statute years later,  the constitution is now read to permit application of damage caps in wrongful death cases based on medical negligence.

One could and should argue that this uneven and unfair application of damage caps runs afoul of the Equal Protection clauses in the Missouri and United States Constitutions and that question and others like it  may well fuel future appeals of such wrongful death cases to the Missouri Supreme Court.

Would it be too simple to remove damage caps entirely where the parties have a right to a jury trial?  Might we better focus on leaving the common law right to jury trial as free of damage caps and the like as it was originally in 1820 here in Missouri and grant all causes of action later adopted (that are entitled to jury trial) the same full right to trial by jury?  Why limit non-economic damages for a patient that dies but not for one who survives improper health care?  Is there really a rational basis for a distinction with that impact?  Or is this just man-made logic?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Workers’ Compensation, Trial and Appellate Practice

http://www.kurthking.com

December 11, 2012

Dual State and Federal Prosecution Does Not Constitute Double Jeopardy

Filed under: Litigation — kurthking @ 5:58 pm
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A new Missouri case upholds Missouri precedent ruling that double jeopardy does not bar prosecution of a defendant for the same offense by separate sovereign jurisdictions, such as the state and federal governments. For example, a defendant who fails to register as a sex offender or who unlawfully possesses a firearm as a felon may be prosecuted by both state and federal governments in which the act constitutes a crime.

In that case, State v. Roach, Opinion No. ED97952 (Mo. Ct. App. E.D., filed November 20, 2012), the defendant plead guilty in federal court to unlawful possession of a weapon, and then persuaded the state court to dismiss the prosecutor’s charge for the same offense based on a state law, on grounds of double jeopardy.  However, the state prosecutor appealed and the Eastern District of the Court of Appeals ruled in favor of the prosecution, reversing the state trial court for erroneously finding that double jeopardy barred the state from prosecuting the defendant for the same offense for which he had just been prosecuted in federal court.  In support of its opinion, the court of appeals cited earlier state and US Supreme Court cases permitting dual prosecution for the same offense by separate sovereigns.

The court of appeals did note the defendant’s argument that 25 other states have enacted statutes limiting state prosecutions following federal prosecution for the same offense.  However, Missouri has yet to join ranks with those states.  The court concluded that it is bound to follow the existing law of this state and referred the defendant  to Missouri’s General Assembly for efforts to make a change.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

General Litigation, Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy for Debtors

Family Law and Other Matters

December 3, 2012

November 12, 2012

A Signed Missouri Workers’ Compensation Settlement But The PTD Client Dies Before Settlement Approved

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 5:23 pm
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A new and rare appellate court decision has been handed down on Missouri Workers’ Compensation law involving a Permanent Total Disabled worker who signed off on a settlement to take a lump sum instead of continuing weekly payments for life, AND THEN DIED BEFORE THE COMMISSION APPROVED THE SETTLEMENT.  The case is out of the Western District of the Missouri Court of Appeals, Nance v. Maxon Electric, WD74942, filed November 6, 2012, written by Judge Gary D. Witt (formerly a judge of Platte County, Missouri).

To make a long story short, this appeal is an effort by the employer, Maxon Electric, to get out of a bad deal.  The company ultimately offered to pay the injured worker just over $180.000 to save having to pay him a weekly payment and medicals for the rest of his lifetime.   Maxon Electric made the deal, drafted and signed the settlement, had the worker sign it also, and sent it to the Labor and Industrial Relations Commission for approval only for employee to die the very day the settlement was received by the Commission and filed–but not yet approved as required by law in order to go into effect.

Had there been no settlement, the worker’s right to weekly workers’ compensation benefits and future medical at the employer’s expense would have ended at the death of the employee.  To try to save the $180,000 they had agreed to pay, Maxon Electric persuaded the Commission that it did not have the legal authority to approve the settlement since no compensation was now due the deceased PTD worker.  This appeal by the worker’s surviving spouse followed to cause the Commission to approve the settlement, forcing Maxon Electric to honor its settlement agreement.

In deciding the case, the Court of Appeals rejected the argument by Maxon Electric that the Commission could not approve the settlement because in it the company agreed to pay considerably more than required by law even if the worker had not died–not to mention that no compensation was due after the death of the worker.   The court’s rationale is that those approval requirements in section 287.530 for contested claims before the Commission asking it to commute  future workers’ compensation benefits into a lump-sum payment do not control when the claim is non-contested as here where the parties have settled by signed agreement.  Rather, in a uncontested claim where the parties have agreed to lump-sum settlement, the court finds per section 287.390.1 that the Commission “shall” approve the settlement if: 1) there is no undue influence or fraud, 2) the terms are understood by the employee/worker, and 3) the employee voluntarily agrees to accept the terms of the agreement.  All three of these elements existed in sufficient quantities here so the Commission was obligated by law to approve the settlement.

Maxon Electric also argued, with no legal authority in support noted, that the Commission could not approve the settlement after the death of the worker.   The court read the plain language of section 287.530.1 which speaks of approval of motions for a lump-sum payment when for the best interests of “the employee or the dependents of the deceased employee.”   The court held that the quoted language empowers the Commission to proceed to approve the lump-sum settlement after the death of the employee, contrary to Mason Electric’s position.

The court ended by ordering the Commission to approve the claim, thus requiring Maxon Electric to pay out the $180,000 to the surviving spouse.  A Proverb advises us to honor our agreements even when it hurts.  Had Mason Electric done so it would have saved what must have been a good-sized attorney fee bill.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Workers’ Compensation, Personal Injury, General Litigation

Chapter 7 Bankruptcy for Debtors, Family Law

http://www.kurthking.com

October 18, 2012

Thoughts On The Social Security Offset Against Missouri Workers’ Compensation

Filed under: Missouri Workers Compensation — kurthking @ 4:38 pm
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Take for example, a Permanent Partial Disability workers’  compensation settlement in a case where the injured worker will need to file for Social Security Disability benefits due to inability to engage in substantially gainful employment.  Not only do we have to worry about Medicaid taking the position that some of the settlement money was for future medical expenses and therefore Medicaid will not pay for them, but we also have to be concerned about Social Security offsetting/reducing its payments to the injured worker to the extent that the work comp and Social Security exceed 80% of the worker’s Average Current Earnings (ACE).

An attorney needs to run the numbers (particularly the workers’ ACE) on this offset for the injured worker, and structure the work comp settlement agreement/stipulation–including these two areas:

1) First allocate and subtract out that part of the award that goes for attorneys fees, litigation expenses, and medical expenses–these should be  “excluded”  which reduces the amount of work comp that Social Security factors in to determine if the Social Security plus work comp exceed 80% of the worker’s ACE.

2)  Find the worker’s life expectancy and divide the remaining work comp settlement by the total number of months of that life expectancy to arrive at what one would hope is a low amount of work comp per month so that when added to monthly Social Security the two do not exceed 80% of the worker’s ACE.

IMO, these are the two “biggies.”

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

http://www.kurthking.com

Workers’ Compensation, Personal Injury, Litigation

Chapter 7 Bankruptcy for debtors

Family Law–Dissolution of Marriage, Modifications, Child Custody, Child Support, Paternity

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