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Workers' Compensation

MO: Western District Announces 'Open Season' On Employers

Just when Missouri business was feeling good about things after comp reform, the court of appeals has now announced open season and allows claimants with occupational disease cases to go after their employers in circuit court instead of comp. State ex rel KCP&L Greater Mo. Operations Co. v Hon. Cook, WD 73462, filed Sept. 13, 2011. ( subscribers can access the Lexis enhanced version of the State ex rel KCP&L Greater Mo. Operations Co. v Hon. Cook, 2011 Mo. App. LEXIS 1161 decision with case links, core terms, and Shepard's).

Claimant has mesothelioma.   He states his exposure occurred while working but he denies his work was the prevailing factor.  Claimant proceeded in tort on negligence and premises theories that his employer breached its care not to expose claimant to asbestos.   The employer filed for summary judgment, and lost, on its argument that the exclusive remedy existed under worker's compensation.

The voluminous opinion turned on one primary issue of statutory construction:  what did reform do to the phrase "accidental injury" in 287.120.2, which provides worker's compensation as the exclusive remedy for injuries at work.   The court found claimant could proceed in circuit court with his tort claim because exclusive remedy only applied to accidents and not occupational diseases. The employer conceded claimant did not have an "accident," as defined by the statute.  The court of appeals affirmed the denial of summary judgment.  The majority relied upon strict construction to find no "accident" and claims 2005 reform changed everything. It rejects more than a half century of precedent to reject the broader definition of accident in Staples v A.P. Green Fire Brick Co., 307 S.W.2d 457 (Mo. banc 1957).

Two dissents indicate the majority allows a claimant with an occupational disease to elect his forum whether he wants to be in front of the Division or a jury to decide compensability.   The dissenters find no legislative intent to remove occupational disease from the Act, or to decouple the Act's coverage from the Act's exclusivity.   The case has onerous implications for Missouri business regarding the disposition of any toxic or repetitive exposure case.

Claimant worked for the employer for 34 years and was diagnosed more than 2 decades after his employment ended.   He had originally named 15 other defendants in his asbestos-exposure claim, and settled or dismissed everyone else except the employer.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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