On September 13, 2011, the Missouri Court of Appeals Western District held that employees may prosecute civil actions to recover from their employers on occupational disease claims, even though they may also have an available workers' compensation remedy for the same injury. Recognizing that this holding constitutes a substantial departure from prior law, the Court found that the 2005 amendments to the Workers' Compensation Law do not preclude an employee from pursuing common-law claims in the circuit court for an occupational disease.
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In State ex rel. KCP&L Greater Missouri Operations Company v. The Honorable Jacqueline Cook, No. WD73462, the Western District, sitting en banc, held that Workers' Compensation is no longer the exclusive remedy for an employee with claims of occupational disease against his employer. In this case, it was alleged that the employee worked for KCP&L for thirty-four years before he retired in 1988. Twelve years later, he was diagnosed with mesothelioma. The employee filed a lawsuit against KCP&L and other defendants, alleging that they were responsible for causing his illness. With respect to KCP&L, the employee claimed that he was exposed to asbestos during the course of his employment for KCP&L and that this asbestos exposure directly and proximately caused him to develop mesothelioma. The employee sought civil damages against KCP&L under premises liability and negligence theories.
KCP&L filed a motion for summary judgment based upon its affirmative defense that the employee's claims against it were exclusively compensable in a workers' compensation proceeding before the Labor and Industrial Relations Commission. In response, the employee argued that, pursuant to the 2005 amendments to the Act, only claims arising out of an "accident" as defined in § 287.020.2, RSMo 2000, as amended, are subject to the Act's exclusivity provisions, and that his claims do not involve an accidental injury. The circuit court entered an order denying KCP&L's summary judgment motion. KCP&L responded by filing a Petition for Writ of Prohibition in the Court of Appeals Western District. The Court issued a preliminary writ.
After full briefing and argument before the Court en banc, the Court quashed its preliminary writ of prohibition. The Court found that the only statutory provision which arguably bars the employee from proceeding against KCP&L in the circuit court is § 287.120, which provides that the remedies afforded injured workers in the Workers' Compensation Law exclude other remedies with respect to any "personal injury or death of the employee by accident." The Court noted that the Act defines an "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." § 287.020.2. KCP&L conceded that the employee's allegation that he was exposed to asbestos over the course of his employment with KCP&L, resulting in his subsequent diagnosis of mesothelioma, does not allege an injury caused by "accident" as that term is defined in § 287.020.2. The Court held that because § 287.120 only denies an employee a common-law remedy for "personal injury or death of the employee by accident," KCP&L's concession that this case does not involve an "accident" defeats its reliance on § 287.120. The Court noted that this result is confirmed by the Supreme Court's decision in Missouri Alliance for Retired Americans v. Department of Labor & Industrial Relations, 277 S.W.3d 670, 679-80 (Mo. banc 2009), by the canon of strict construction which the Court applied in interpreting the act, § 287.800, and by the principle that, unless a statute clearly abrogates the common law either expressly or by necessary implication, common law remedies remain available. The Court recognized that, prior to the comprehensive 2005 amendments to the Workers' Compensation Law, numerous judicial decisions, including the Missouri Supreme Court's decision in Staples v. A.P. Green Fire Brick Co., 307 S.W.2d 457 (Mo. banc 1957), held that occupational disease claims were subject to § 287.120's exclusivity provisions, even though such claims did not arise from an "accident" as statutorily defined.
However, the Court found that the 2005 amendments materially modified several provisions of the Act which prevented the Court from relying on pre-2005 case law. The Court also recognized that multiple provisions of the Act provide for the compensability of occupational disease claims, including repeat-exposure occupational disease claims, through the workers' compensation system. However, the Court reasoned that the existence of a workers' compensation remedy for such claims does not necessarily establish that the statutory remedy is exclusive. The Court noted that examples exist in Missouri and other states where workers have been afforded the option of pursuing either an administrative or judicial remedy. Finally, the Court noted that, while it may constitute a substantial departure from prior law, there is nothing absurd or irrational in finding that workers may prosecute civil actions to recover from their employers on occupational disease claims, even though they may also have an available workers' compensation remedy for the same injury.
It should be noted that the opinion is still subject to post-opinion motions and applications to transfer.
Robyn Greifzu Fox a principal, chairs the firm's Appellate and Insurance Coverage practice groups. In addition to her appellate and insurance practice, Robyn also works closely with the firm's other practice groups providing support with complex legal issues by assisting in motions, memoranda, trial briefs, jury instructions, post-trial motions and petitions for extraordinary writ relief.
