S.B. 1 And The New Missouri Mesothelioma Risk Management Fund OK. So Now What??

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1 S.B. 1 And The New Missouri Mesothelioma Risk Management Fund OK. So Now What?? Mike Greco, President, CCMI Mike Banahan, Member, E&D Anita Kiehne, Area V.P., AJG

2 And What In The World Do We Do With This???

3 Historical Perspective of S.B. 1 The 2005 amendments to the Missouri Workers Compensation Statutes Precluded Occupational Disease in the definition of Accident Pre-2005, Accident included the language series of events which allowed for repeated exposures resulting in an occupational disease Post-2005 definition of Accident limited it to a single, identifiable event

4 Historical Perspective of S.B. 1 Prior to An Occupational Disease is compensable if it is clearly work related and meets the requirements of any injury which is compensable After 2005 Amendments An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability

5 Historical Perspective of S.B. 1 Post 2005 Occupational Diseases were no longer considered to be under the exclusive remedy provisions of the Law Courts held that employers could be sued in civil court by current and former employees for injuries arising from Occupational Diseases State ex rel. KCP&L vs. Cook said that a civil suit by an ex-employee with mesothelioma not subject to exclusive remedy of Missouri W/C Statute.

6 S.B. 1 Restored Occupational Diseases as compensable under the Workers Compensation statute: 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

7 S.B. 1 Restored Workers Compensation as the exclusive remedy for occupational diseases: The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependent heirs or next of 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

8 S.B. 1 Created a Category of Occupational Diseases to be known as Occupational Diseases Due To Toxic Exposure : Mesothelioma Asbestosis Berylliosis Coal Workers Pneumoconiosis Bronchiolitis Obliterans Silicosis Silicotuberculosis Manganism-Resporatory Disease Acute Myelodysplastic Leukemia Myelogenous Syndrome

9 Employers will no longer have a right of subrogation in any third party injury case if injury or death is a result of Occupational Disease Due To Toxic Exposure Injury or Death as a result of Occupational Disease Due To Toxic Exposure entitles the worker to Enhanced Benefits (Next Slide) Enhanced Benefits survive the employee s death paid to dependents or estate Employers must elect to accept or reject workers compensation coverage for Mesothelioma liability for claims from employees (Two or Three Slides from Now)

10 Provides That Additional Benefits Are Owed to an Employee That Becomes Totally Disabled or Dies as a Result of One Of The Toxic Exposure Occupational Diseases: 100 weeks of compensation at a rate equal to 200% of the State AWW unless the cause is Mesothelioma 212 weeks of compensation based on 300% of the State AWW for Mesothelioma where the employer has accepted Mesothelioma liability

11 Additional Benefits Owed For The Little Nine : $157,666 (based on current state AWW)* Additional Benefits Owed For Mesothelioma: $501,377 (based on current state AWW)* *Important to consider: The SIR is still your SIR.

12 New Law Provides that Employers May Reject W/C Coverage for Mesothelioma Related Death or Cover Exposures in Two Ways: Employers Can Elect to Insure Liability by Qualifying as a Self-Insurer Can Become a Member of a Group Insurance Pool

13 Rejecting W/C Mesothelioma liability under new statute subjects employer to jurisdiction in Civil Court for the Meso Liability (exclusive remedy of W/C is lost), however other insurance coverage may apply: Part B Employers Liability However Employers Liability Coverage typically has Limit of Liability far less than Statutory Benefits coverage of Part A BEWARE! General Liability Coverage May have exclusion for Employees or Asbestos Significant Legal Expenses May Be Incurred Multiple Years of Exposure may mean multiple carriers/sirs

14 Rejecting W/C Mesothelioma liability under new statute subjects employer to jurisdiction in Civil Court for the Meso Liability (exclusive remedy of W/C is lost), however: Rejecting Meso under W/C does not mean you reject the underlying Asbestos W/C claim Enhanced Benefits for Asbestos (and other Little 9 ) is still owed You re only defending the Meso piece Two SIRs? First SIR Statutory W/C (Asbestos) Second SIR Employer s Liability for Meso Liability?

15 Additional Considerations for Rejecting W/C Mesothelioma Liability Applicable to Public Entities: 1) Sovereign Immunity 2) Statutory Caps Currently $398,638

16 New Law Provides that Employers May Reject W/C Coverage for Mesothelioma related death or Cover Exposures in Two Ways: Employers Can Elect to Insure Liability by qualifying as a Self-Insurer Can Become a Member of a Group Insurance Pool

17 New Law Provides for a new Missouri Mesothelioma Risk Management Fund ( ) Any Missouri employer can participate in the Mesothelioma Fund Participation in Mesothelioma Fund has same effect as becoming a member of a pool or being self-insured (meaning, presumably, individual members are jointly and severally liable for the shortages of the group) Fund will use monies collected from members to pay awards against any member

18 Potential Downsides to New Mesothelioma Fund: At this point, only exists on paper! DWC has not established rules for creation of the Fund No determination of costs associated with participating No determination who will be in fund (your cellmates) No determination on how assessments may be made, past years, how far back, etc. Which of your cases will be eligible for coverage under the fund? Newly reported only? All pre-existing? What happens if you want to get out of fund? Other states coverage?

19 So What In The World Do I Do With This??? Essentially, Three Choices one of which we can t imagine you ll want to take Cover Meso Under S/I comp Reject Meso Under S/I comp and defend in civil court Become a member of Fund

20 Group Self-Insurance Issues with the Missouri Mesothelioma Risk Management Fund: Executive Director or Chairperson (as applicable) can fill out the form on behalf of Group to bind members Individual members can elect out of decision Group to submit a list of members and election of each If members elect out of group s coverage, they may still be liable for assessments made by group for shortages from Meso Annual Updates to DWC Not Required Except for New Members New Members Must Accept/Reject When Joining Pool

21 Group Self-Insurance Issues with the Missouri Mesothelioma Risk Management Fund: Member (Employer) Elects Out of W/C for Meso Liability Trust will pay statutory W/C Benefits for underlying case Member Afforded Coverage Under E/L For Meso?

22 So What In The World Do I Do With This??? Entities will need to make a determination by 12/2/13 (although DWC now says that date is arbitrary, not set in stone) Decision made on individual circumstances and appetite for risk Bulk of Enhanced Benefits will fall to Excess Insurers to pay

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