§ 287.120 — Liability of employer set out — compensation increased or reduced, when — use of alcohol or controlled substances or voluntary recreational activities, injury from — effect on compensation — mental injuries, requirements, firefighter stress not affected.

Missouri § 287.120

• Jurisdiction: Missouri
• Title XVIII: LABOR AND INDUSTRIAL RELATIONS
• Ch. 287: Workers' Compensation Law

Text

1.  Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment.  Any employee of such employer shall not be liable for any injury or death for which compensation is recoverable under this chapter and every employer and employees of such employer shall be released from all other liability whatsoever, whether to the employee or any other person, except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.  The term "accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

2.  The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, the employee's spouse, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such injury or death by accident or occupational disease, except such rights and remedies as are not provided for by this chapter.

3.  No compensation shall be allowed under this chapter for the injury or death due to the employee's intentional self-inflicted injury, but the burden of proof of intentional self-inflicted injury shall be on the employer or the person contesting the claim for allowance.

4.  Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

5.  Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.

6.  (1)  Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.

(2)  If, however, the use of alcohol or nonprescribed controlled drugs in violation of the employer's rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited.

(3)  The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury.  A preponderance of the evidence standard shall apply to rebut such presumption.  An employee's refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010 , at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer's policy clearly authorizes post-injury testing.

(4)  Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee's system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:

(a)  The initial testing was administered within twenty-four hours of the accident or injury;

(b)  Notice was given to the employee of the test results within fourteen calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;

(c)  The employee was given an opportunity to perform a second test upon the original sample; and

(d)  The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.

7.  Where the employee's participation in a recreational activity or program is the prevailing cause of the injury, benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part.  The forfeiture of benefits or compensation shall not apply when:

(1)  The employee was directly ordered by the employer to participate in such recreational activity or program;

(2)  The employee was paid wages or travel expenses while participating in such recreational activity or program; or

(3)  The injury from such recreational activity or program occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.

8.  Mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual.  The amount of work stress shall be measured by objective standards and actual events.

9.  A mental injury is not considered to arise out of and in the course of the employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer.

10.  The ability of a firefighter to receive benefits for psychological stress under section 287.067 shall not be diminished by the provisions of subsections 8 and 9 of this section.

Legislative History

(RSMo 1939 § 3691, A.L. 1965 p. 397, A.L. 1969 H.B. 367, A.L. 1974 S.B. 417, A.L. 1978 H.B. 1260, A.L. 1990 S.B. 751, A.L. 1992 H.B. 975, A.L. 2005 S.B. 1 & 130, A.L. 2012 H.B. 1540, A.L. 2013 S.B. 1, A.L. 2017 S.B. 66) Prior revision: 1929 § 3301 Accident, Injury (1998) Injuries which occur while traveling to and from medical treatment for prior compensation injuries do not arise out of and in the course of employment and, as such, are not compensable.  Bear v. Anson Implement Inc., 976 S.W.2d 553 (W.D.Mo.), transfer denied. (1998) The Division of Workers' Compensation has exclusive subject matter jurisdiction over claims of medical malpractice for post-accident injuries alleged to be caused by treatment of an injury falling under the purview of workers' compensation law because such claims are sufficiently work-related to arise out of and in the course of employment.  Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (W.D.Mo.). Exclusive Remedy (1980) Exclusive remedy of parents of deceased worker for compensation for alleged wrongful death of worker in employment accident under Workers' Compensation  Law; overruling Miller v. Hotel Savoy Co. (A.), 68 S.W.2d 929. Combs v. City of Maryville (A.), 609 S.W.2d 475. (1984) Exclusive remedy provision of Workers' Compensation Act is not a bar to a common law action against a parent or subsidiary corporation of the plaintiff's immediate employer.  Boswell v. May Centers, Inc. (Mo. App.), 669 S.W.2d 585. (1996) Statute's exclusivity provision does not bar recovery of damages under the Missouri Human Rights Act.  Varner v. National Super Markets, Inc., 94 F.3d 1209 (8th Cir.). Third Party Actions (1985) An employer is not subject to third-party actions for contribution or assessment of fault with respect to an employee's accident covered under the Workers' Compensation Act. Redford v. R.A.F., Corp., 615 F.Supp. 547 (D.C.Mo.). (1989) Where contract required subcontractor to defend and indemnify general contractor in claims arising out of performance of the contract, workers' compensation statute does not shield subcontractor from liability for breach of independent contractual duty to indemnify general contractor. U.S. v. Fru-Con Construction Corp.  (8th Cir.) 890 F.2d 1046. (1991) Workers' compensation statutes do not bar an action by a third party for indemnity against an employer when employer breaches an independent duty or obligation to third party. Independent duty of due care is created when employer participates in design of machinery in intrusive or specific way and constitutes an exception to the exclusive remedy of workers' compensation statutes. Coello v. Tug Manufacturing Corp., 756 F.Supp. (W.D. Mo.).