The Law Office of Kurt H King

April 20, 2020

Workers’ Compensation Cases from the Covid-19 Virus

Some employers may be exposing their workers to the virus without proper protection.  As a result, a worker may be infected and become ill, perhaps very ill or even die, from such increased exposure.

In these situations, the worker may well have a workers’ compensation injury claim to cause the employer (its insurer usually) to provide–at its cost–medical care, weekly compensation while off work, plus an award of money to compensate the worker for his or her permanent disability.   The law also mandates the employer/insurer pay compensation to spouse and/or dependents in cases where the employee dies from the injury, or in this case, the virus.

I handle Missouri and Kansas workers’ compensation claims and would be glad to speak with you about whether you have a viable claim.   These claims are typically handled on a 25% contingency fee basis, so there is no fee unless you receive compensation on the claim.  However, clients are generally responsible for reimbursing the out-of-pocket expenses for the costs of obtaining medical records, examination and rating by a doctor if needed, and the like.

It is important to act promptly as there are time limits that will defeat your claim if you wait past the deadlines!

Please call if you think this situation may apply to you!  Thank you.

Kurt H. King 816.781.6000

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

Practice Areas–Workers’ Compensation, Personal Injury, Chapter 7 Bankruptcy, Estate Planning, Family Law, Landlord-Tenant, General Matters

October 26, 2017


Marci Gordon of Synergy Settlements out of Orlando, Florida, did fine job at recent Clay County, Missouri, CLE on the subject of ERISA liens and some reduction strategies.   Her business card also lists Medicare set aside trusts, lien resolution, pooled trust services, and complex settlement planning and consulting.

Synergy offices at 911 Outer Road, Orlando, Florida 32814, with a Toll Free line 877.242.0022, Direct line 407.279.4812, Cell 407.620.7471.

Kurt H. King

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


Personal Injury, Workers’ Compensation, Litigation, General Matters

November 18, 2013

Worker’s Dependents Entitled to His Workers’ Compensation for Their Lifetimes

This post dovetails prior posts regarding Missouri Workers’ Compensation law involving death by other causes of a Permanently Totally Disabled (PTD) worker and the “Schoemehl window.”

The Southern District of the Missouri Court of Appeals recently addressed an appeal by the Second Injury Fund in a case where the PTD employee with a claim within the Schoemehl window died from causes not related to the injury.   The case is Spradling v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Slip Opinion SD31907 (November 5, 2013), and holds specifically for cases within these parameters that the dependents of the deceased PTD worker whose claim was pending and not finally determined as of June 26, 2008 are entitled to the PTD compensation payments FOR THE LIFETIME OF THE DEPENDENT(S).

Note that the employee died from causes unrelated to his injury in November 2005 after having been injured in 1998 and having filed his claim in 1998.  On the date of injury, he was the non-custodial father of two young children who were “conclusively presumed” under 287.240(4) to be his dependents.

Note too that this case falls within the “Schoemehl Window” opened by the Missouri Supreme Court in Schoemehl on January 9, 2007, and continuing until June 26, 2008, when Missouri lawmakers closed the window by revising Missouri workers’ compensation law so that PTD in such a case terminates upon the death of the injured employee.

The bottom line is that in Schoemehl window cases the employer has to pay PTD so long as a dependent lives, but if the claim falls after that window closed the employer only has to pay only so long as the employee lives.

Kurt H. King

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


Workers’ Compensation, Personal Injury

Chapter 7 Bankruptcy for Debtors, General Matters

Family Law–Dissolution of Marriage, Modification, Paternity, Child Custody, Support, & Visitation

November 12, 2012

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

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

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

Workers’ Compensation, Personal Injury, Litigation

Chapter 7 Bankruptcy for debtors

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

September 20, 2012

Seven Woes In Settling Permanent Total Work Comp Cases in Missouri

Recent thoughts and experiences from the injured employee’s side of Permanent Total Disability claim settlement:

1.  The big stick in the hands of the defense is that the employer/insurer does NOT have to pay a lump sum to settle PTD cases.  A key option the employer/insurer has is to simply pay the weekly amount until the employee dies (with very limited exceptions).  Along with the weekly compensation check, the defense also has to pay future medical along the way.  However, the injured employee can expect the defense to drag their feet and balk before continuing to pay future medical bills.   To resolve disputes over non-payment of future medicals, the employee racks up more attorney fees to hire counsel to sue in a circuit court (not the Division of Workers’ Compensation), and waits months for a hearing/trial date.  Not many PTD employees have any money for court costs and attorneys fees as they are living from week to week on the meager weekly compensation checks running about 2/3 of their former weekly wage.  The defense knows the last thing the employee wants is to never have any money again and to have to fight forever to get their medicals paid.  This puts the employee in such a bind that is is difficult to put real pressure on the defense over the total compensation the employer/insurer face paying over the life expectancy of the employee.  The end result is that the employee is under serious pressure to get as much of a lump sum settlement as the defense will offer and get the hell out of Dodge.  The danger of taking the money and running is that is may well not be enough to pay the future medical expense, especially after the employee catches up the bills and tries to have a life again.  At the other end of the gauntlet sits Medicaid which has the right to refuse to pay for medical expense of a employee who received a work comp settlement that included money for future medical expenses.  After all, why should taxpayers pay medical bills that the injured employee was given settlement money to pay?

2.  While word on the street is that Medicaid lacks the time and staff to check  on smaller lump sum settlements (below $250k, we hear), that is uncertain and the risk remains that Medicaid may refuse to pay for future medical care, forcing the PTD employee to use his/her settlement money (if any remains) to pay health care providers.  And who knows how long the economy will support even present levels of Medicaid.  At some point in the future, Medicaid may not be around, at least not as we now know it.

3.  Medicaid Set-Aside Trusts–To buy out of the obligation to provide the PTD employee with future medical care at its expense, the defense sometimes looks into paying a chunk of money into a Medicaid Set-Aside Trust by which Medicaid agrees to pay the future medical care of the employee.  If Medicaid wants a relatively large funding from the defense, then this option may be rejected.  But sometimes the employer/insurer uses this tool and funds a Trust, leaving Medicaid to pay the future medicals.   Some concerns for the PTD employee from the Trust route are: 1) he/she gets no money for future medical treatment, reducing his settlement; 2) Medicaid may not last or continue to pay for the lifetime of the employee; 3) some doctors do not accept Medicaid, particularly some of the top-notch pain management physicians; 4) the employee’s attorney who fought for the defense to pay future medicals now has to fight again to receive  a contingency fee percentage that the attorney would have received had the future medical compensation been paid in settlement to the employee (example: if future medicals are $100,000 of the settlement, the attorney’s typical work comp 25% fee amounts to $25,000).

4.  If the PTD employee decides not to take a lump sum settlement, the alternative is weekly compensation checks for life.  BUT if the employee’s disability improves and he/she can reenter the labor force in a meaningful way, the defense can simply move for orders converting the case to one of Partial Disability, thus ending its legal obligation to pay weekly compensation as long as the injured employee lives.  Put another way, a PTD case stays open for reassessment of the employee’s ability to work a job.

5.  Reaching a lump-sum settlement puts the injured employee in some control of his destiny.  He or she can now pick his doctors and course of treatment although at his/her expense (unless it can be panned off on Medicaid which runs off taxpayer money).  Conversely, NOT accepting a lump sum settlement leaves the employee at the mercy of the defense who picks the doctors it wants to get what may be a less expensive or beneficial treatment plan than what the injured employee wants.  And, if the employee refuses to follow the treatment plan of the defense doctors, then the defense cuts the employee loose to pay for his/her own treatment (the ideal outcome for the defense so beware).

6.  FYI–a typical present value rate in work comp is 4% compounded annually.

7.   The weekly workers compensation checks run about 2/3 of regular pay (up to caps set by law), which leaves many employees so destitute that they jump for any semi-reasonable lump sum settlement–letting the defense off the hook, so to speak.


Kurt H. King

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

Litigation, Personal Injury, Workers’ Compensation, Other Matters

September 19, 2012

Mileage Reimbursement Under Missouri Workers’ Compensation Law

The question arises frequently as to whether and how much the employer owes the injured employee for mileage to and from doctors and other health care providers.

The answer lies in subsection 1 of Missouri statute 287.140.  That  law provides that IF the medical exam or treatment is “at a place OUTSIDE the local or metropolitan area from the employee’s principal place of employment,” the employer shall advance or reimburse the employee for all necessary and reasonable  expenses–BUT no transportation costs over 250 miles each way from the place of treatment.  (Query: do transportation costs include hotel/lodging costs at the Mayo Clinic, for example?)

As a general rule, what this means is that where the treatment or exam is INSIDE that local or metropolitan area of the employee’s principal place of employment, then the employee is NOT entitled to mileage or transportation expense reimbursement for travel to receive medical treatment for his/her injury or to undergo a medical exam requested by the employer/insurer.

But as a practical matter, the employer/insurer does pay for such mileage/transportation expense where the injury prevents the employee from being able to drive or otherwise reach the place of treatment or exam.  For example, the injury may have caused the employee to be physically unable to lawfully operate a vehicle to reach to the place of treatment.  Or, the prescribed pain medication may be so strong that to drive would constitute operating a vehicle under Under The Influence and thus be subject to a DUI charge.

So, there are exceptional cases but the injured employee most often bears the cost of going for medical treatment or exams in the local or metropolitan area of his principal place of employment.

Kurt H. King

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

Litigation, Personal Injury, Workers’ Compensation, Other Matters

How Serious Does the Previous Disability Have to Be to Hold the Second Injury Fund Liable In Missouri Workers’ Compensation Cases

On September 11, 2012, the Eastern District of the Missouri Court of Appeals handed down its decision in Salviccio v. Treasurer of the State of Missouri, As Custodian of the Second Injury Fund  (Slip Opinion ED97862), which holds that the injured employee may not stack/combine previous disabilities in order to reach the threshold which triggers possible Second Injury Fund (“SIF”) liability–except in limited situations.    The court of appeals then transferred this case to the Missouri Supreme Court due to the “general interest and importance of the issues.”  We will have to wait to see what happens at the Supreme Court, but here is a bit on where we are now on the question of whether an injured employee’s current or previous disabilities are serious enough to win against the Fund.

The Missouri statute on liability of the SIF is section 287.220.1, which sets minimum limits an employee must meet.  Boiling down considerable verbage, those limits are that each current and previous disability  must separately amount to 50 weeks or more if a Body As A Whole disability, or 15% permanent partial disability if a major extremity only.

The employee in Salviccio injured his left knee and settled the claim for 20% Permanent Partial Disability (“PPD”) at that level.  He later took his accompanying claim against the Fund to trial and won 12.3 more weeks of compensation to be paid by the Fund on the theory that the combination of all the employee’s injuries was 12.3 weeks more than the simple total of the present knee injury added to the disability from his previous disabilities.   The previous disabilities here were a 50% disability (11 weeks) at the proximal joint/22 week level for a left little finger injury, two hernias of 16 and 14 weeks respectively, and 50 weeks for his diabetes with some symptoms of paresthesia.

The employee wanted to combine all these previous disabilities for to get the maximum possible from the Fund–and the Labor and Industrial Labor Relations Commission obliged.   However, the court of appeals sided with the Fund, measuring each disability separately, and concluded that only the diabetes disability met the 50 week requirement.  Consequently, the court reduced the award against the Fund to 8.2 weeks of compensation.

Of particular interest is the little finger injury because it was rated at 50%, which exceeds the 15% required of a major threshold injury to trigger Fund liability.  However, the court of appeals found that an 11 week injury to the proximal joint on the little finger of the non-dominant left hand is simply not a “major” extremity injury.

Compare, however, the decision in Palazzolo v. Joe’s Delivery Service, 98 S.W.3d 645, 648 (Mo. Ct. App. E.D. 2003), which upheld an award against the Fund on a 15% disability at the 110 week level of the foot (the distal third).  In that case, the Fund apparently admitted that the foot may be a major extremity.  By analogy, a hand at the 175 week level would also seem to be a major extremity for these purposes.

(One wonders what the court would do with a case where the previous disability was an operation on the left wrist which left the 4th finger non-responsive due to tendon damage.   The scar and surgery occurs at the 175 week hand/wrist level but the disability lies with use of the 4th finger.)

Finally, we read in Salviccio that there is a limited scenario in which separate disabilities to the same major extremity may be stacked to meet the 15% major extremity only threshold for Fund liability.  The court notes its 2003 decision in Shipp v. Treasurer of State of Missouri, 99 S.W.3d 44, 53 (Mo. Ct. App. E.D. 2003), finding it acceptable to combine previous disability to the right wrist and right shoulder which added up to 15% disability of the right arm in the Commission’s mind, thus meeting the threshold limit triggering Fund liability.

In sum, while it seems acceptable to combine disabilities at various levels of one major extremity to implicate the Fund, it is not permissible to combine separate Body as a Whole disabilities or to merge extremity only disability with Body as a Whole disability.

Kurt H. King

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

Litigation, Personal Injury, Workers’ Compensation

June 26, 2012

Permanent Total Disability Depends On Whether The Worker Can Compete In the Open Labor Market

When is an injured Missouri worker Permanently Totally Disabled?  While not breaking new ground, the June 14, 2012, decision of the Southern District of the Missouri Court of Appeals in Larry Underwood v. High Road Industries, LLC (Opinion SD31731), illustrates Missouri law on the test used to determine if the worker is Totally or just Partially disabled.

The court of appeals stated the test as follows on page 12 of its decision, quoting the Western District’s words in an older case:

     “The test for permanent total disability is whether the worker is able to compete in the open labor market.  The critical question is whether, in the ordinary

     course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.”

What this means is that the injured worker need not be 100% disabled to be found Permanently Totally Disabled (PTD).  In this case, the worker (Underwood) was rated at 40% disabled by his independent exam doctor, while the treating doctor selected by the employer found only 13% disability.  Both ratings seem low in view of the chronic back and right side pain from a fall on concrete due to ladder failure while installing a radiator in a truck as part of his job as a diesel mechanic.  The fall left Underwood in severe and chronic pain to the point where the employer/insurer paid for surgery to implant a spinal cord stimulator.  Even though the stimulator relieved 40% of the pain, Underwood still suffered constant throbbing pain and some numbness, such that sleep was difficult and he could only stand or sit for 30 minutes at a time.  And, he could only drive 10 miles at a time.  Even this amount of driving contradicted the advice of the stimulator company that he should not drive when the stimulator was active because it could send false signals down his right leg.  But with the stimulator off, the pain was nearly unbearable.   With the pain, the hydrocodone and Tramadol pain medication every 4-6 hours, his 10th grade education and below-average intelligence scores, Underwood would be unable to retrain academically or otherwise. 

Even the employer/insurer’s treating doctor restricted Underwood to no more than 1 hour sitting or standing at a time.  The employee’s vocational expert testified that this restriction demoted Underwood into a category of “less than sedentary work capacity.”  The expert explained that “anybody that can’t do sedentary work is unemployable.”   The court of appeals agreed and affirmed the Labor and Industrial Relations Commision’s award in favor of Underwood finding him to be Permanently Totally Disabled.

What may lie behind the scenes in this case is the employee’s refusal to accept a lump-sum settlement offer from the employer/insurer.  Apparently, the employer/insurer declined to offer Underwood the amount of money he thought he should receive.  Without settlement, the case proceeded to trial.  Unfortunately, even though Underwood won at trial, all the judge can award him under Missouri law is that the employer/insurer pay a small weekly sum to him for life, and also pay his medical expenses related to the injury.  The employer/insurer may in the future refuse to pay some medical expenses sought by Underwood which will result in more litigation to force payment.  Too, the small weekly compensation amount tends not to be a great burden upon the employer/insurer.  So while Underwood won his case for PTD,  the result may end up a draw or even a victory for the employer/insurer due to small weekly amounts of money they  will have to pay to Underwood.

Kurt H. King

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


Workers’ Compensation, Personal Injury, Medical Malpractice, Wrongful Death

Chapter 7 Bankruptcy for debtors

Family Law–Divorce, Modifications, Paternity, Child Custody, Support & Visitation

June 14, 2012

No Work Comp for “Equally Exposed” Injury

Employee on the clock making coffee at the office kitchen.  Turns and twists her ankle, “causing her foot to fall off her shoe.”  The fall fractures her pelvis resulting in a trip to the Emergency Room and conservative treatment including physical therapy but no surgery.  Injury reported and Missouri Workers’ Compensation claim followed.  Claim denied at trial by ALJ, reversed and claim granted on appeal to the Labor and Industrial Relations Commission, and now the Supreme Court of Missouri reverses the Commission to again deny the claim.  These are the facts of the May 29, 2012, Opinion SC92113 by the Missouri Supreme Court in Johme v. St. John’s Mercy Healthcare.

This case turns on Missouri statute 287.020.3(2)(b)  which, in the words of the Court, “instructs that Johme’s injury ‘shall be deemed to arise out of and in the course of [her] employment only if . . . it [did] not come from a hazard or risk unrelated to [her] employment to which [she] would have been equally exposed outside of and unrelated to [her] employment in [her] normal employment life.‘ ”   More simply put, no compensation for job injuries due to causes to which the employee is equally exposed off the job AND which are unrelated to her employment.

Prior to the 2005 amendment of section 287.020  to override previous case law, Missouri courts permitted just such claims as this by employee Johme.  Back then the injured employee was entitled to recover workers’ compensation even if  the act that caused the injury involved risks to which one would be equally exposed outside of work.  The rationale was that the act causing injury would not have occurred if the employee were not at work.  For example of law prior to the 2005 amendment, a worker succeeded on her workers’ compensation claim for injury that resulted as she  fell and injured her ankle while carrying her lunch in a break room at work while walking across a clear floor area, without apparent cause.  Drews v. TWA, 984 S.W.2d 512 (Mo. banc 1999).

This Supreme Court oponion in Johme v. St. John’s Mercy Healthcare illustrates a shift in law favoring the employer and workers’ compensation insurance companies. 

Kurt H. King

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


Workers’ Compensation, Personal Injury, Trial and Appellate Litigation

Chapter 7 Bankruptcy for Debtors, Family Law including Divorce, Modification, Paternity, Child Custody, Support, & Visitation

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