SECOND REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE COX.
Read 1st time January 24, 2008 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 287.141, 287.280, 287.380, 287.690, 287.710, 287.715, 287.717, 287.745, and 287.957, RSMo, and to enact in lieu thereof ten new sections relating to workers' compensation, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 287.141, 287.280, 287.380, 287.690, 287.710, 287.715, 287.717, 287.745, and 287.957, RSMo, are repealed and ten new sections enacted in lieu thereof, to be known as sections 287.141, 287.280, 287.380, 287.382, 287.690, 287.710, 287.715, 287.717, 287.745, and 287.957, to read as follows:
287.141. 1. The purpose of this section is to restore the injured person as soon as possible and as nearly as possible to a condition of self-support and maintenance as an able-bodied worker by physical rehabilitation. The provisions of this chapter relating to physical rehabilitation shall be under the control of and administered by the director of the division of workers' compensation. The division of workers' compensation shall make such rules and regulations as may be necessary to carry out the purposes of this section, subject to the approval of the labor and industrial relations commission of Missouri.
2. The division of workers' compensation shall continuously study the problems of physical rehabilitation and shall investigate all rehabilitation facilities, both private and public, and upon such investigation shall approve as qualified all such facilities, institutions and physicians as are capable of rendering competent physical rehabilitation service for seriously injured industrial workers. Rehabilitation facilities shall include medical, surgical, hospital and physical restoration services. No facility or institution shall be considered as qualified unless it is equipped to provide physical rehabilitation services for persons suffering either from some specialized type of disability or general type of disability within the field of industrial injury, and unless such facility or institution is operated under the supervision of a physician qualified to render physical rehabilitation service and is staffed with trained and qualified personnel and has received a certificate of qualification from the division of workers' compensation. No physician shall be considered as qualified unless he has had the experience prescribed by the division.
3. In any case of serious injury involving disability following the period of rendition of medical aid as provided by subsection 1 of section 287.140, where physical rehabilitation is necessary if the employer or insurer shall offer such physical rehabilitation to the injured employee and such physical rehabilitation is accepted by the employee, then in such case the director of the division of workers' compensation shall be immediately notified thereof and thereupon enter his approval to such effect, and the director of the division of workers' compensation shall requisition the payment of forty dollars per week benefit from the second injury fund in the state treasury to be paid to the employee while he is actually being rehabilitated, and shall immediately notify the state treasurer thereof by furnishing him with a copy of his order. But in no case shall the period of physical rehabilitation extend beyond twenty weeks except in unusual cases and then only by a special order of the division of workers' compensation for such additional period as the division may authorize. As used in this section, "serious injury" includes, but is not limited to, quadriplegia, paraplegia, amputation of hand, arm, leg, atrophy to nerve injury or nonuse, and back injuries not amenable alone to recognized medical and surgical procedures.
4. In all cases where physical rehabilitation is offered and accepted or ordered by the division, the employer or insurer shall have the right to select any physician, facility, or institution that has been found qualified by the division of workers' compensation as above set forth.
5. If the parties disagree as to such physical rehabilitation treatment, where such treatment appears necessary, then either the employee, the employer, or insurer may file a request with the division of workers' compensation for an order for physical rehabilitation and the director of the division shall hear the parties within ten days after the filing of the request. The director of the division shall forthwith notify the parties of the time and place of the hearing, and the hearing shall be held at a place to be designated at the discretion of the division. The director of the division may conduct such hearing or he may direct one of the administrative law judges to conduct same. Such hearing shall be informal in all respects. The director of the division shall, after considering all evidence at such hearing, within ten days make his order in the matter, either denying such request or ordering the employer or insurer within a reasonable time, to furnish physical rehabilitation, and ordering the employee to accept the same, at the expense of the employer or insurer. When the order requires physical rehabilitation, it shall also include an order to requisition the payment of forty dollars per week out of the second injury fund in the state treasury to the injured employee during such time as such employee is actually receiving physical rehabilitation.
6. In every case where physical rehabilitation shall be ordered, the director of the division may, in his discretion, order the employer or insurer to furnish transportation to the injured employee to such rehabilitation facility or institution.
7. As used in this section, the term "physical rehabilitation" shall be deemed to include medical, surgical and hospital treatment in the same respect as required to be furnished under subsection 1 of section 287.140.
8. An [appeal from any] order of the division of workers' compensation [hereby created to the appellate court may be taken and governed in all respects in the same manner as appeals in workers' compensation cases generally under section 287.495] shall be deemed an award and subject to review and appeal in the same manner as provided for other awards in this chapter.
287.280. 1. Every employer subject to the provisions of this chapter shall, on either an individual or group basis, insure [his] its entire liability thereunder, except as hereafter provided, with some insurance carrier authorized to insure such liability in this state[, except that] . An employer or group of employers may themselves carry the whole [or any part of the] liability without insurance upon satisfying the division of their ability [so] to do so by meeting the requirements set forth in the rules promulgated by the division. Groups of employers as defined in the rule shall self-insure their liability as a trust. The division may grant conditional authority to the employer or trust to self-insure its workers' compensation liabilities under this chapter and as set forth in the rules.
2. (1) As a condition of being granted self-insurance authority by the division, the employer or trust shall post security in the amount determined by the division based upon a review consisting of, but not limited to the following:
(a) Annual reports or audited financial statements;
(b) Up to five years' loss history; and
(c) Known or potential hazards in the workplace and its potential for producing an occupational illness or injury and the financial risks associated with these hazards.
Security shall be posted in a division-approved form and by escrow agreement, surety bond, or an irrevocable letter of credit, as defined and explained in the rules promulgated by the division. When a group of employers enter into an agreement to pool its liabilities under this chapter, individual members shall not be required to qualify as individual self-insurers but shall be jointly and severally liable for all obligations of the group of employers. The division may require the self-insured employer or trust to post additional security thereafter or at a later date based on either a quarterly or annual financial evaluation, the amount of outstanding losses, estimated current year losses, and financial statements and other factors. Failure to post the additional security within the time period defined by the division may result in the suspension or revocation of the employer's or trust's self-insurance authority. The division has the right to retain the security posted by the employer or trust after the termination, suspension, revocation of the employer's or trust's self-insurance authority and based upon the criteria and standards defined in the rules.
(2) A current, former, or withdrawing self-insured employer or trust shall, at the request of the division, provide a certified opinion of an independent actuary who is a member of the American Academy of Actuaries of the actuarial value of the determined and estimated future compensation payments of the losses, in the event it is unwilling to maintain security in the amount required by the division, it is insolvent, it files for bankruptcy protection, or is unable or fails to honor its compensation obligations under this chapter for the self-insured period. In the event a current, former, or withdrawing self-insured employer or trust who either voluntarily terminated its self-insurance authority or whose authority was suspended, revoked, or terminated by the division refuses to provide such actuarial opinion or report to the division, the division may institute the necessary legal action and obtain an order from the circuit court through the attorney general's office requiring the current, voluntary, or involuntary former or withdrawing self-insured employer or trust or its successors in interest to provide such actuarial opinion or report and order any other relief that the court determines is appropriate, including reasonable attorney's fees and costs pertaining thereto.
(3) If a self-insured employer or group self-insurer reincorporates, merges, consolidates, or undergoes any other corporate change, it shall provide the division with the plan of merger or plan of consolidation or other ownership and corporate change approved by the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote at the meeting where the corporate change was submitted. The self-insured employer or group shall provide the division with the appropriate documentation to enable the division to evaluate whether the entity needs to apply for separate self-insurance authority after the change. The division has the right to terminate the self-insurance authority of the employer or group for its failure to provide the requested documentation evidencing corporate change. A self-insured employer or group who, because of a legal change in business or corporate structure or in its legal name or for failure to provide the documentation had its self-insurance authority terminated may have its certificate to self-insure reinstated without lapse, upon satisfying the division of its ability to meet the requirements set forth in the rules promulgated by the division.
(4) If an employer or group of employers have qualified to self-insure their liability under this chapter, the division [of workers' compensation] may, if it finds [after a hearing that the employer or group of employers are willfully and intentionally violating the provisions of this chapter with intent to defraud their employees of their right to compensation,] an employer or group of employers failed to comply with the requirements of this section or as set forth in the rules to self-insure its liability, suspend [or] , revoke, or terminate the right of the employer or group of employers to self-insure their liability. The division may reinstate the self-insurance authority of an employer or group of employers without lapse upon being satisfied of the employer or group of employer's ability to meet the requirements set forth in the rules promulgated by the division.
(5) If the employer or group of employers fail to comply with this section, an injured employee or [his] the employee's dependents may elect after the injury either to bring an action against such employer or group of employers to recover damages for personal injury, occupational disease, or death and it shall not be a defense that the injury, occupational disease, or death was caused by the negligence of a fellow servant, or that the employee had assumed the risk of the injury, occupational disease, or death, or that the injury, occupational disease, or death was caused to any degree by the negligence of the employee; or to recover under this chapter with the compensation payments commuted and immediately payable[; or, if the employee elects to do so, he or she may file a request with the division for payment to be made for medical expenses out of the second injury fund as provided in subsection 5 of section 287.220]. [If the employer or group of employers are carrying their own insurance, on the application of any person entitled to compensation and on proof of default in the payment of any installment, the division shall require the employer or group of employers to furnish security for the payment of the compensation, and if not given, all other compensation shall be commuted and become immediately payable; provided, that employers engaged in the mining business shall be required to insure only their liability hereunder to the extent of the equivalent of the maximum liability under this chapter for ten deaths in any one accident, but the employer or group of employers may carry their own risk for any excess liability. When a group of employers enter into an agreement to pool their liabilities under this chapter, individual members will not be required to qualify as individual self-insurers.]
(6) If an employer who has been granted self-insurance authority by the division is a self-insurer in default, the division shall call upon the entire security posted by the employer. As used in this section, "self-insurer in default" means an individual private sector employer that has defaulted or failed for any reason to satisfy any of its obligations that are owed to an injured employee or employee's dependants under this chapter, as determined by the division, including, without limitation, all obligations for payment of indemnity compensation, disability, expenses of medical, hospital, surgical, rehabilitation, and other services, death benefits and funeral expenses, whether based upon stipulation approved under section 287.390 or based upon an award issued under this chapter or otherwise or whether or not such default or failure is the result of insolvency, bankruptcy, receivership, or otherwise. The division shall forward all known losses of a current, former, or withdrawing self-insured employer to the Missouri private sector individual self-insurers guaranty corporation created under sections 287.860 to 287.885. The division may refer all known losses or cases of an employer prior to 1992, to a third-party administrator or any such entity authorized in this state to administer the workers' compensation cases. The third-party administrator or entity to whom the losses are transferred shall be entitled to receive the security proceeds from the division and use the proceeds after deducting reasonable administrative expenses approved by the division to pay the compensation benefits owed of a self-insured employer prior to 1992, under this chapter. The security proceeds shall not be state property and shall not be subject to appropriation by the legislature, the treasurer, or any other state agency. Any unused portion of the security proceeds shall be returned to the division or transferred to the Missouri private sector individual self-insurers guaranty corporation to administer, defend, and pay the claims of the member self-insurer in default. The employer may apply to the division for release of the unused portion of the security proceeds as set forth in the rules and regulations promulgated by the division.
(7) If a group of employers or trust who has been granted self-insurance authority by the division fails to pay any of its obligations that are owed to an injured employee or employee's dependants under this chapter, as determined by the division, including, without limitation, all obligations for payment of indemnity compensation, disability, expenses of medical, hospital, surgical, rehabilitation, and other services, death benefits and funeral expenses, whether based upon stipulation approved under section 287.390 or based upon an award issued under this chapter or otherwise, the division shall call upon the entire security posted by the group of employers or trust. The division may refer all known losses or cases of the group of employers to a third-party administrator or any such entity authorized in this state to administer the workers' compensation cases. The third-party administrator or entity to whom the losses are transferred shall be entitled to receive the security proceeds from the division and use the proceeds after deducting reasonable administrative expenses approved by the division to pay the compensation benefits owed under this chapter. The security proceeds shall not be state property and shall not be subject to appropriation by the legislature, the treasurer, or any other state agency. Any unused portion of the security proceeds shall be returned to the division. The group of employers may apply to the division for release of the unused portion of the security proceeds as set forth in the rules and regulations promulgated by the division.
3. Groups of employers qualified to insure their liability pursuant to chapter 537, RSMo, [or] except the Missouri public entity risk management fund which is governed by sections 537.700 to 537.755, RSMo, shall meet all requirements established by the division under this section. All division approved self-insured groups of employers under this chapter[,] shall utilize a uniform experience rating plan promulgated by an approved advisory organization. Such groups shall develop experience ratings for their members based on the plan. Nothing in this section shall relieve an employer from remitting, without any charge to the employer, the employer's claims history to an approved advisory organization.
[3.] 4. For every entity qualified to group self-insure their liability pursuant to this chapter or chapter 537, RSMo, each entity shall not authorize total discounts for any individual member exceeding twenty-five percent beginning January 1, 1999. All discounts shall be based on objective quantitative factors and applied uniformly to all trust members.
[4.] 5. Any group of employers that have qualified to self-insure their liability pursuant to this chapter shall file with the division premium rates, based on pure premium rate data, adjusted for loss development and loss trending as filed by the advisory organization with the department of insurance pursuant to section 287.975, plus any estimated expenses and other factors or based on average rate classifications calculated by the department of insurance as taken from the premium rates filed by the twenty insurance companies providing the greatest volume of workers' compensation insurance coverage in this state. The rate is inadequate if funds equal to the full ultimate cost of anticipated losses and loss adjustment expenses are not produced when the prospective loss costs are applied to anticipated payrolls. [The provisions of this subsection shall not apply to those political subdivisions of this state that have qualified to self-insure their liability pursuant to this chapter as authorized by section 537.620, RSMo, on an assessment plan. Any such group may file with the division a composite rate for all coverages provided under that section.
5.] 6. If the trustees are unable to collect assessment moneys from the individual members of the trust to make up for insufficient funds in the claims account to pay for the workers' compensation obligations as they become due or the claims account is depleted to zero, the trustees shall provide the division with an accounting of all assessment moneys collected for the years the trust was self-insured. In the event the trustees do not provide the division with the accounting, the division shall take necessary measures, including filing any legal action to obtain the accounting, financial records, and other relevant information and records, including access to the bank accounts, at the expense of the members of the trust. If the money in the claims account is depleted, then in addition to calling upon the security posted by the self-insured trust, the division may take appropriate legal action as authorized by law. All expenses associated with paying the claims shall be deducted from the security posted with the division or will be borne by the trust or its members. The division shall determine how claims shall be paid, including pro rata payment of claims if the funds are insufficient to pay both existing and new claims. The division shall have the right to attend all board meetings and receive prior notice of the meetings. The board of directors at the board meeting or at a later date shall not take any action that adversely impacts upon the financial ability of the trust to honor and pay its workers' compensation obligations.
7. The self-insured employer, group, or trust may request an evidentiary hearing before an administrative law judge within thirty days from the date of the final order of the division to terminate, revoke, or suspend the self-insurance status of the employer, group, or trust, deny the release or reduction of the security request, or increase the security to be posted. The hearing shall be a simple, informal proceeding. The rules of evidence in civil cases in the state of Missouri shall apply. In any proceeding before the administrative law judge under this section, the burden of proof shall be on the employer, group, or trust, except where the division files a petition to revoke the self-insurance authority of the employer, group, or trust with the administrative law judge. Any finding or determination made after an evidentiary hearing by the [division] division's administrative law judge under this section may be reviewed as provided in sections [287.470 and] 287.480 and 287.495. If an application for review is not filed with the labor and industrial relations commission, then the decision or award of the administrative law judge is final and binding on the parties. If the self-insured employer or trust does not file a request for an evidentiary hearing before the administrative law judge within thirty days from the date of the final order of the division to either terminate, revoke, or suspend the self-insurance status of the employer, group, or trust, or deny the release or reduction of the security request, or increase the security to be posted, the division's decision shall be final.
[6. No rule or portion of a rule promulgated under the authority of this section shall become effective unless it has been promulgated pursuant to the provisions of section 536.024, RSMo.
7.] 8. Any records, documents, or statements submitted by the self-insured employer, group, or trust pursuant to this section, and pursuant to any rule promulgated by the division pursuant to this section, shall be considered confidential and not subject to chapter 610, RSMo. [Any party to a workers' compensation case involving the party that submitted the records shall be able to subpoena the records for use in a workers' compensation case, if the information is otherwise relevant.] Any claimant or the self-insured employer, group, or trust that submitted the records, documents, or statements to the division under this section and against whom a claim for compensation has been filed in the underlying workers' compensation case, or its authorized representative, shall be supplied with relevant information from the division's records to the extent necessary for the proper preparation and presentation of the case under a subpoena. The relevant records or documents produced by the division consistent with the subpoena shall not be secondarily released. No person, including the employees of the division shall be held liable for slander or libel on account of any such information.
287.380. 1. Every employer or his insurer in this state, [whether he has accepted or rejected the] who is subject to or has elected to be governed by the provisions of this chapter, shall within thirty days after knowledge of the injury, file with the division by filing or reporting by electronic data transmission to the division under such rules and regulations and in such form or format and detail as the division may require, a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work, or compensation hereunder [had he accepted this chapter, and] . Every employer or insurer shall also furnish the division with such supplemental reports in regard thereto as the division shall require. All reports submitted or electronically reported under this subsection shall include the name, address, date of birth, Social Security number and wages of the deceased or injured employee, the time and cause of the accident, the nature and extent of the injury, the name and address of the [employee's and the employer's or insurer's attorney of record, if any] employer, insurer, or third-party administrator, the medical cost incurred in treating the injured employee, the amount of lost work time of the employee as a result of the injury and such other information as the director may reasonably require in order to maintain in the division, accurate and complete data on the impact of work-related injuries on the workers' compensation system. [The division shall collect and maintain such data in such a form as to be readily retrieved and available for analysis by the division.] Employers shall report all injuries to their insurance carrier, or third-party administrators, if applicable, within five days of the date of the injury or within five days of the date on which the injury was reported to the employer by the employee, whichever is later. Where an employer reports injuries covered pursuant to this chapter to his insurer or third-party administrator, the insurer or third-party administrator shall be responsible for filing or electronically submitting the report prescribed in this section. A reporter who electronically submits the first report of injury to the division on behalf of the employer shall sign a written electronic partnering agreement with the division. The division may set performance requirements for any reporter submitting data electronically. No report filed under this section shall be deemed filed until the paper report or electronic transmission thereof has been received and accepted by the division. As used in this section, "reporter" means the insurance carrier, third-party administrator, service company, or self-insured, self-administered employers who have been granted permission by the division to electronically submit or receive information from the division.
2. The division shall collect and maintain such data in such a form as to be readily retrieved and available for analysis by the division. The data collected electronically shall be compatible with the electronic data interchange system of the International Association of Industrial Accident Boards and Commissions. The director may adopt rules authorizing the use of other nationally recognized data transmission formats in addition to those set forth in the electronic data interchange system for transmissions of data required under this section. The director shall accept data transmissions in any authorized format. If the director determines that any authorized data transmission format is not in general use by the reporter, conflicts with the requirements of state or federal law, or is obsolete, the director may refuse to accept the transmission format from those authorized under this subsection.
3. Every employer and his insurer, and every injured employee, his dependents and every person entitled to any rights hereunder, and every other person receiving from the division or the commission any blank reports with direction to fill out the same shall cause the same to be promptly returned to the division or the commission properly filled out and signed so as to answer fully and correctly to the best of his knowledge each question propounded therein, and a good and sufficient reason shall be given for failure to answer any question.
[3. No information obtained under the provisions of this section shall be disclosed to persons other than the parties to compensation proceedings and their attorneys, except by order of the division or the commission, or at a hearing of compensation proceeding, but such information may be used by the division or the commission for statistical purposes.]
4. (1) Except as otherwise provided in this section, the following records are confidential and exempt from disclosures under chapter 610, RSMo:
(a) Any and all records that are submitted to the division by an individual employer, group of employers, or trust in support of an application for self-insurance authority, and reports submitted to remain in compliance with the self-insurance authority under section 287.280 and rules and regulations applicable thereto;
(b) First reports of injury, whether original or amended and whether filed in paper format or electronically with the division under this section. Supplemental reports filed with the division whether in paper format or electronically concerning the injury or benefits paid to the injured worker;
(c) Loss data information submitted to the division by a self-insured employer or group of employers or trust or its third-party administrator under section 287.280 and rules and regulation applicable thereto;
(d) Any and all medical records or reports submitted to the division under this chapter;
(e) Correspondence submitted to the division by any party to the underlying workers' compensation case;
(2) The division may release, disclose, or publish information described in subdivision (1) of this subsection under the following circumstances:
(a) In the case of paragraph (a), (b), or (c) of subdivision (1) of this subsection, the division may disclose or publish aggregate information for statistical or research purposes so long as it is disclosed or published in such a way that the confidentiality of information concerning individual workers or the financial records of individual employers or self-insured employers, group of employers, trusts, or insurers is protected;
(b) In the case of paragraph (b) of subdivision (1) of this subsection, the division may release information to another governmental agency if the governmental agency provides the division with sufficient assurance that it will preserve the confidentiality of the information. The other agency may use such information to determine the eligibility of an individual for benefits provided or regulated by the agency. Nothing in this paragraph prohibits the division from disclosing or releasing records to the commission;
(c) Information that is disclosed or released under paragraph (a) or (b) of this subdivision shall continue to be exempt from disclosure under chapter 610, RSMo;
(3) The confidentiality provided in paragraphs (b), (d), and (e) of subdivision (1) of this subsection shall not apply to a workers' compensation proceeding pending before the division and shall be disclosed to the parties to the compensation proceedings and their attorneys;
(4) Notwithstanding any other provision to the contrary, this section shall not limit the power of a court of law to subpoena records relevant to a matter pending before it;
(5) The division shall disclose and release records to a nonparty to the underlying workers' compensation case upon receiving either a duly executed and notarized authorization to release workers' compensation records from the employee or a subpoena under section 287.560.
5. Any person, including any employer, insurer or any employee, who violates any of the provisions of this section, including any employer or insurer or reporter who knowingly fails to report any accident under the provisions of subsection 1 of this section, or anyone who knowingly makes a false report or statement in writing to the division or the commission, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty nor more than five hundred dollars, or by imprisonment in the county jail for not less than one week nor more than one year, or by both the fine and imprisonment.
287.382. Papers, documents, reports, or evidence in the possession of an insurer or self-insured employer relative to the subject of an investigation by the division of workers' compensation shall be made available upon request to the division so long as the division deems such information reasonably necessary to complete the investigation and any subsequent legal action. No insurer, employee, or agent of any insurer, or any other person acting without malice shall be subject to civil liability for libel or otherwise by virtue of the filing of reports or furnishing other information required by the division.
287.690. 1. Prior to December 31, 1993, for the purpose of providing for the expense of administering this chapter and for the purpose set out in subsection 2 of this section, every person, partnership, association, corporation, whether organized under the laws of this or any other state or country, the state of Missouri, including any of its departments, divisions, agencies, commissions, and boards or any political subdivisions of the state who self-insure or hold themselves out to be any part self-insured, company, mutual company, the parties to any interindemnity contract, or other plan or scheme, and every other insurance carrier, insuring employers in this state against liability for personal injuries to their employees, or for death caused thereby, under this chapter, shall pay, as provided in this chapter, tax upon the net deposits, net premiums or net assessments received, whether in cash or notes in this state, or on account of business done in this state, for such insurance in this state at the rate of two percent in lieu of all other taxes on such net deposits, net premiums or net assessments, which amount of taxes shall be assessed and collected as herein provided. Beginning October 31, 1993, and every year thereafter, the director of the division of workers' compensation shall estimate the amount of revenue required to administer this chapter and the director shall determine the rate of tax to be paid in the following calendar year pursuant to this section commencing with the calendar year beginning on January 1, 1994. If the balance of the fund estimated to be on hand on December thirty-first of the year each tax rate determination is made is less than one hundred ten percent of the previous year's expenses plus any additional revenue required due to new statutory requirements given to the division by the general assembly, then the director shall impose a tax not to exceed two percent in lieu of all other taxes on net deposits, net premiums or net assessments, rounded up to the nearest one-half of a percentage point, which amount of taxes shall be assessed and collected as herein provided. The net premium equivalent for individual self-insured employers and any group of political subdivisions of this state qualified to self-insure their liability pursuant to this chapter as authorized by section 537.620, RSMo, shall be based on average rate classifications calculated by the department of insurance as taken from premium rates filed by the twenty insurance companies providing the greatest volume of workers' compensation insurance coverage in this state. For employers qualified to self-insure their liability pursuant to this chapter, the rates filed by such group of employers in accordance with subsection [2] 3 of section 287.280 shall be the net premium equivalent. Every entity required to pay the tax imposed pursuant to this section and section 287.730 shall be notified by the division of workers' compensation within ten calendar days of the date of the determination of the rate of tax to be imposed for the following year. Net premiums, net deposits or net assessments are defined as gross premiums, gross deposits or gross assessments less canceled or returned premiums, premium deposits or assessments and less dividends or savings, actually paid or credited.
2. After January 1, 1994, the director of the division shall make one or more loans to the Missouri employers mutual insurance company in an amount not to exceed an aggregate amount of five million dollars from the fund maintained to administer this chapter for start-up funding and initial capitalization of the company. The board of the company shall make application to the director for the loans, stating the amount to be loaned to the company. The loans shall be for a term of five years and, at the time the application for such loans is approved by the director, shall bear interest at the annual rate based on the rate for linked deposit loans as calculated by the state treasurer pursuant to section 30.758, RSMo.
287.710. 1. Every such insurance carrier or self-insurer, on or before the first day of March of each year, shall make a return, verified by the affidavit of its president and secretary or other chief officers or agents, to the director of the department of insurance, stating the amount of all such gross premiums or deposits and credits during the year ending on the thirty-first day of December, next preceding.
2. The amount of the tax due for each calendar year shall be paid in four approximately equal estimated quarterly installments, and a fifth reconciling installment. The first four installments shall be based upon the application of the current calendar year's tax rate to the premium for the immediately preceding taxable year ending on the thirty-first day of December, next preceding. The quarterly installments shall be made on the first day of March, the first day of June, the first day of September and the first day of December. Immediately after receiving certification from the director of the department of insurance of the amount of tax due from the various companies or self-insurers, the director of revenue shall notify and assess each company or self-insurer the amount of taxes on its premiums for the calendar year ending on the thirty-first day of December, next preceding. The director of revenue shall also notify and assess each company or self-insurer the amount of the estimated quarterly installments to be made for the calendar year. If the amount of the actual tax due for any year exceeds the total of the installments made for such year, the balance of the tax due shall be paid on the first day of June of the year following, together with the regular quarterly payment due at that time. If the total amount of the tax actually due is less than the total amount of the installments actually paid, the amount by which the amount paid exceeds the amount due shall be credited against the tax for the following year and deducted from the quarterly installment otherwise due on the first day of June and any other payments required by this section until the credit is exhausted. In the event no such payments are due, the overpaid amount shall be refunded in accordance with the procedures set forth in section 287.745. If the March first quarterly installment made by a company or self-insurer is less than the amount assessed by the director of revenue, the difference will be due on June first, but no interest will accrue to the state on the difference unless the amount paid by the company or self-insurer is less than eighty percent of one-fourth of the total amount of tax assessed by the director of revenue for the immediately preceding taxable year.
3. Upon the receipt of the returns and verification by the director of the division of workers' compensation as to the percent of tax to be imposed, the director of the department of insurance shall certify the amount of tax due from the various insurance carriers or self-insurers on the basis and at the rate provided in section 287.690, and make a schedule thereof, duplicate copies of which, properly certified by the director, shall be filed in the offices of the revenue department, the state treasurer, and the division of workers' compensation on or before the thirtieth day of April of each year. If the taxes provided for in this section are not paid, the department of revenue shall certify the fact to the director of the department of insurance who shall thereafter suspend the delinquent carriers of insurance or self-insurers from the further transaction of business in this state until the taxes are paid.
4. Upon receipt of the money all such moneys shall be deposited to the credit of the fund for the support of the division of workers' compensation.
5. The tax collected for implementing the workers' compensation fund, and any interest accruing thereon, under the police power of the state from those specified in sections 287.690, 287.715, and 287.730 shall be used for the purpose of making effective the law to relieve victims of industrial injuries from having individually to bear the burden of misfortune or becoming charges upon society and for the further purpose of providing for the physical rehabilitation of the victims of industrial injuries, and for no other purposes. It is hereby made the express duty of every person exercising any official authority or responsibility in and for the state of Missouri sacredly to safeguard and preserve all funds collected, and any interest accruing thereon, under and by virtue of sections 287.690, 287.715, and 287.730 for the purposes hereinabove declared.
6. The funds created by virtue of sections 287.220, 287.690, 287.715, and 287.730 shall be exempt from the provisions of section 33.080, RSMo, specifically as they relate to the transfer of fund balances and any interest thereon to the ordinary revenue, and the director of the division of workers' compensation may direct the state treasurer to invest all or part of these funds in interest-bearing accounts as provided in article IV, section 15 of the Constitution of the state of Missouri, and any unexpended balance in the second injury fund at the end of any appropriation period shall be a credit in the second injury fund and shall be the amount of the fund at the beginning of the appropriation period next immediately following.
287.715. 1. For the purpose of providing for revenue for the second injury fund, every authorized self-insurer, and every workers' compensation policyholder insured pursuant to the provisions of this chapter, shall be liable for payment of an annual surcharge in accordance with the provisions of this section. The annual surcharge imposed under this section shall apply to all workers' compensation insurance policies and self-insurance coverages which are written or renewed on or after April 26, 1988, including the state of Missouri, including any of its departments, divisions, agencies, commissions, and boards or any political subdivisions of the state who self-insure or hold themselves out to be any part self-insured. Notwithstanding any law to the contrary, the surcharge imposed pursuant to this section shall not apply to any reinsurance or retrocessional transaction.
2. Beginning October 31, 2005, and each year thereafter, the director of the division of workers' compensation shall estimate the amount of benefits payable from the second injury fund during the following calendar year and shall calculate the total amount of the annual surcharge to be imposed during the following calendar year upon all workers' compensation policyholders and authorized self-insurers. The amount of the annual surcharge percentage to be imposed upon each policyholder and self-insured for the following calendar year commencing with the calendar year beginning on January 1, 2006, shall be set at and calculated against a percentage, not to exceed three percent, of the policyholder's or self-insured's workers' compensation net deposits, net premiums, or net assessments for the previous policy year, rounded up to the nearest one-half of a percentage point, that shall generate, as nearly as possible, one hundred ten percent of the moneys to be paid from the second injury fund in the following calendar year, less any moneys contained in the fund at the end of the previous calendar year. All policyholders and self-insurers shall be notified by the division of workers' compensation within ten calendar days of the determination of the surcharge percent to be imposed for, and paid in, the following calendar year. The net premium equivalent for individual self-insured employers and any group of political subdivisions of this state qualified to self-insure their liability pursuant to this chapter as authorized by section 537.620, RSMo, shall be based on average rate classifications calculated by the department of insurance as taken from premium rates filed by the twenty insurance companies providing the greatest volume of workers' compensation insurance coverage in this state. For employers qualified to self-insure their liability pursuant to this chapter, the rates filed by such group of employers in accordance with subsection [2] 3 of section 287.280 shall be the net premium equivalent. The director may advance funds from the workers' compensation fund to the second injury fund if surcharge collections prove to be insufficient. Any funds advanced from the workers' compensation fund to the second injury fund must be reimbursed by the second injury fund no later than December thirty-first of the year following the advance. The surcharge shall be collected from policyholders by each insurer at the same time and in the same manner that the premium is collected, but no insurer or its agent shall be entitled to any portion of the surcharge as a fee or commission for its collection. The surcharge is not subject to any taxes, licenses or fees.
3. All surcharge amounts imposed by this section shall be deposited to the credit of the second injury fund.
4. Such surcharge amounts shall be paid quarterly by insurers and self-insurers, and insurers shall pay the amounts not later than the thirtieth day of the month following the end of the quarter in which the amount is received from policyholders. Payments required under this section shall be deemed made the earlier of either the date postmarked by the United States Post Office on the envelope or container in which such paper is received or the date certified by a commercial delivery service as the date its customer deposited for delivery and paid such delivery charges the envelope or container in which such paper is received. For electronic payments or electronic transfer of funds, payments required under this section shall be deemed made on the date the funds are received by the division. If the director of the division of workers' compensation fails to calculate the surcharge by the thirty-first day of October of any year for the following year, any increase in the surcharge ultimately set by the director shall not be effective for any calendar quarter beginning less than sixty days from the date the director makes such determination. If after the end of any calendar year, the amount of the actual surcharge due is less than the total amount of the installments actually paid, the amount by which the amount paid exceeds the amount due shall only be credited against the surcharge for the following year and deducted from the quarterly installment due on June first and any other payments required by this section until the credit is exhausted. In the event no such payments are due and upon application of the insurer or self-insurer to the director of the division of workers' compensation, the director of revenue may refund the amount of credit if no other obligation is owed to the state. The procedure for the refund is set forth in section 287.745.
5. If a policyholder or self-insured fails to make payment of the surcharge or an insurer fails to make timely transfer to the division of surcharges actually collected from policyholders, as required by this section, a penalty of one-half of one percent of the surcharge unpaid, or untransferred, shall be assessed against the liable policyholder, self-insured or insurer. Penalties assessed under this subsection shall be collected in a civil action by a summary proceeding brought by the director of the division of workers' compensation.
287.717. 1. Beginning January 1, 2004, the administrative surcharge established pursuant to section 287.716 shall be collected from deductible plan policyholders by each insurer at the same time and in the same manner that the premium is collected, but no insurer or its agent shall be entitled to any portion of the administrative surcharge as a fee or commission for its collection. The administrative surcharge is not subject to any taxes, licenses, or fees.
2. All administrative surcharges imposed pursuant to section 287.716 shall be paid to the Missouri director of revenue and shall be deposited to the workers' compensation administrative fund.
3. The amount of the administrative surcharge due for the current calendar year shall be paid in four approximately equal estimated quarterly installments, and a fifth reconciling installment. The first four installments shall be based upon the amount of administrative surcharge payable in the calendar year for which the surcharge is imposed. The quarterly installments shall be made on the first day of March, the first day of June, the first day of September, and the first day of December. On or before the first day of March of each year, every such insurer shall submit a report, verified by the affidavit of its president and secretary or other chief officers or agents, to the director of the department of insurance, stating the amount of all such total premiums which would have been paid for the deductible portion.
4. If after the end of any calendar year, the amount of the actual administrative surcharge due is less than the total amount of the installments actually paid, the amount by which the amount paid exceeds the amount due shall only be credited against the administrative surcharge for the following year and deducted from the quarterly installment due on June first and any other payments required by this section until the credit is exhausted. In the event no such payments are due and upon application of the insurer to the director of the division of workers' compensation, the director of revenue may refund the amount of credit if no other obligation is owed to the state. The procedure for the refund is set forth in section 287.745.
5. If a deductible plan policyholder fails to make payment of the administrative surcharge, or an insurer fails to make timely transfer to the director of revenue of administrative surcharges actually collected from deductible plan policyholders, as required by this section, a late charge of one-half of one percent of the administrative surcharge unpaid, or transferred, shall be assessed against the liable deductible plan policyholder or insurer. Late charges assessed pursuant to this subsection shall be collected in a civil action by a summary proceeding brought by the director of the division of workers' compensation.
6. If the administrative surcharges imposed by this section are not paid when due, the deductible plan policyholder or insurer shall be required to pay, as part of such administrative surcharge, interest thereon at the rate of one and one-half percent per month for each month or fraction thereof delinquent. In the event the state prevails in any dispute concerning an assessment of the administrative surcharge, which has not been paid by the policyholder or insurer, interest shall be paid upon the amount found due to the state at the rate of one and one-half percent per month for each month or fraction thereof delinquent.
7. The division may authorize electronic transfer of all forms, reports, payments, and other information deemed appropriate by the division as required pursuant to this section and sections 287.690, 287.710, 287.715, and 287.716. Information filed pursuant to this section and sections 287.690, 287.710, 287.715, and 287.716 and under any rules promulgated by the division pursuant to this section and sections 287.690, 287.710, 287.715, and 287.716 shall be confidential and not subject to chapter 610, RSMo. Nothing in this subsection prohibits the exchange of information between the department of revenue, the department of insurance, financial institutions, and professional registration, and the division of workers' compensation in order to fulfill the responsibilities under this chapter.
8. This section shall not apply to any employer or group of employers authorized by the division to self-insure their liability pursuant to this chapter.
287.745. 1. If the tax imposed by sections 287.690[,] and 287.710, [and 287.715] are not paid when due, the taxpayer shall be required to pay, as part of such tax, interest thereon at the rate of one and one-half percent per month for each month [or fraction thereof] delinquent prorated from the date payment is made. If the surcharge imposed by section 287.715 is not paid when due, the insurer or self-insurer shall be required to pay a late charge of one and one-half percent per month for each month delinquent prorated from the date payment is made. [In the event the state prevails in any dispute concerning an assessment of tax which has not been paid by the taxpayer, interest shall be paid upon the amount found due to the state at the rate of one and one-half percent per month for each month or fraction thereof delinquent.]
2. In any legal contest concerning the amount of tax under sections 287.690[,] and 287.710 and [287.715] the surcharges under sections 287.715, 287.716, and 287.717 for a calendar year, the quarterly installments for the following year shall continue to be made based upon the amount assessed by the director of revenue for the year in question. [If after the end of any taxable year, the amount of the actual tax due is less than the total amount of the installments actually paid, the amount by which the amount paid exceeds the amount due shall be credited against the tax for the following year and deducted from the quarterly installment otherwise due on June first.] Upon application of the insurer or self-insurer to the director of the division of workers' compensation and verification, audit adjustments and approval by the director of the division of workers' compensation of the amounts overpaid, the director of revenue may refund the amount of overpayment if no other obligation is owed to the state or to the division of workers' compensation. Notwithstanding section 136.035, RSMo, all requests for refunds of taxes imposed under sections 287.690 and 287.710 and surcharges imposed under sections 287.715, 287.716, and 287.717 shall be filed directly with the division of workers' compensation. All such tax and surcharge refund requests shall be in writing and signed by the applicant and shall state the specific grounds upon which the request for refund is founded. After confirming that the refund is owed and the amount is accurate, the division of workers' compensation shall forward it to the department of revenue for payment.
287.957. The experience rating plan shall contain reasonable eligibility standards, provide adequate incentives for loss prevention, and shall provide for sufficient premium differentials so as to encourage safety. The uniform experience rating plan shall be the exclusive means of providing prospective premium adjustment based upon measurement of the loss-producing characteristics of an individual insured. An insurer may submit a rating plan or plans providing for retrospective premium adjustments based upon an insured's past experience. Such system shall provide for retrospective adjustment of an experience modification and premiums paid pursuant to such experience modification where a prior reserved claim produced an experience modification that varied by greater than fifty percent from the experience modification that would have been established based on the settlement amount of that claim. The rating plan shall prohibit an adjustment to the experience modification of an employer if the total medical cost does not exceed one thousand dollars and the employer pays all of the total medical costs and there is no lost time from the employment, other than the first three days or less of disability under subsection 1 of section 287.160, and no claim is filed. An employer opting to utilize this provision maintains an obligation to report the injury under subsection 1 of section 287.380. A self-insured employer or member of a group qualified to insure its workers' compensation liability under this chapter or under chapter 537, RSMo, that has voluntarily withdrawn its self-insurance authority or had its self-insurance authority terminated or revoked shall continue to use the most recent experience modification factor utilized as a self-insured employer for up to three years or until such time as sufficient data is made available to the approved advisory organization so that an experience modification factor can be promulgated for that former self-insurer. Such experience modification factor, supporting calculation, payroll, and loss history shall be provided by self-insurance groups to the self-insurance members within thirty days of request.
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