Occupational Diseases Are No Longer Exclusively Covered by the Missouri Workers’ Compensation Act

In State Ex Rel. KCP&L Greater Missouri Operations Company, vs. The Honorable Jacqueline Cook, Circuit Court Judge, 17th Judicial Circuit Court, the court held that occupational diseases are no longer exclusively covered by the Missouri Workers’ Compensation Act.

Here, Mr. Gunter worked 34 years for Kansas City Power & Light (hereinafter KCP&L) retiring in 1998.  He was diagnosed with mesothelioma in February 2010.  In April, 2010, he filed suit against KCP&L, 16 manufacturers of asbestos products as well as other design and manufacturing companies.  KCP&L asserted affirmative defenses which included the exclusivity provision of Section 287.120 of the Workers’ Compensation Act.  The 16 other employers and associated design and manufacturing companies either settled or were subsequently dismissed from the suit.  KCP&L filed a motion for summary judgment based on the exclusive remedy provisions of the Workers’ Compensation Act.  They also argued that Gunter should be compelled to exhaust his administrative remedies which reside with the Labor and Industrial Relations Commission as defined in the Workers' Compensation Act.

​Gunter argued that under the 2005 amendments, only claims arising out of an accident as defined by Section 287.020.2 are subject to the exclusivity provisions, and that the condition alleged by Gunter was not an accidental injury but rather an occupational disease.   

In a 7 to 2 decision, the full Court of Appeals of the Western District of Missouri held that the exclusive remedy provision did not apply because Gunter’s claims did not arise out of an accident as the term is defined under R.S.M.O. 287 and that recent changes to the Act which took effect in 2005, indicate that the exclusive remedy provisions of the Workers’ Compensation Act do not apply to occupational diseases. 

The court discussed the 2005 amendments to the Workers' Compensation Act and the intent of the legislature.  The Court found that there are two categories of compensable injuries.  The first are those defined by Section 287.020 that concern injuries by accident.  The statute suggests that injuries by accident include those from an unexpected traumatic event which is identifiable by time and place and producing objective symptoms of an injury during a single work shift.  Injuries by accident are compensable “only if the accident is the prevailing factor in causing both the medical condition and disability.” (287.020)  The second category of compensable injuries are those that are contracted by occupational disease.  These are defined by Section 287.067, which states that occupational diseases are defined as “an identifiable disease arising with or without human fault out of and in the course of employment.  Occupational diseases are compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.”

​The court then looked to the plain language of Section 287.120 and concluded that “an employer is liable, irrespective of negligence, to provide benefits for personal injury or death of an employee by an accident that arises out of or in the course of employment.  All other rights are excluded on account of the accidental injury or death.”  The plain language of Section 287.120.1 and 2 clearly apply the exclusive remedy only to injuries or death caused by accidents.  There is no specific inclusion of occupational diseases within this definition. 

​The majority also cited to the Missouri Alliance case and the Supreme Court's decision that pursuant to revisions of the Workers’ Compensation Act, there is a new class of people that are excluded from the Act based on the narrowing of the definition of accidental injury.  Based on that definition, the group of excluded injured workers is no longer subject to the exclusive remedy provisions of 287.120.  Since Gunter’s occupational disease claim did not arise out of an accident as defined by 287.020.2, the Workers’ Compensation Act does not apply and he has a right to bring suit under the common law.  (Missouri Alliance for Retired Americans, et al., v. Department of Labor and Industrial Relations, Division of Workers’ Compensation, 277 SW3d 670, 680.)

​Further, the court discussed the language found in 287.800.  This Section provides that reviewing courts shall strictly construe the provisions of Chapter 287.  Because of the strict construction provision, the Court felt that it could not add injuries by occupational disease under the protections of the exclusive remedy provisions of the Comp Act, 287.120.1 and 2.  Indeed, the revisions to 287.800 show the clear intent of the legislature and the court is not authorized to broaden its application.  (Robinson v. Hooker, 323 SW3d  418)

The court also found that the 2005 revisions not only weakened the exclusive remedy provision but also established that the burden to prove that the exclusive remedy should apply must be determined by the circuit court.  The Circuit Court shall examine the facts and find, by a preponderance of the evidence, that the issue contested is one for the Labor and Industrial Relations Commission.  (Before 2005, any doubts were to be resolved in favor of the exclusive commission authority to resolve particular claims.  That is no longer the case, given that 287.800 altered the general construction of the Act to be solely a strict construction of the statutory provisions.  (Gunter v. KCP&L, 11).)

Next, the court opined that the 2005 amendments removed the previously provided authority for the courts to adapt a broader definition of various terms to give full effect to other provisions of the Act.  Before 2005, the accident and occupational disease provisions referenced one another within the actual statutes.  The 2005 amendments changed that scheme and the legislature intentionally separated what defined an accident and occupational disease.

​The majority also found compelling that the 2005 statutory amendments specifically abrogated prior case law that had provided some clarity to the definition of accident, occupational disease, arising out of, and in the course of employment.  The majority indicated that the abrogation of these prior cases showed a “clear and unequivocal legislative directive contained in 287.020.10 to disregard those cases and their findings.”  This essentially cleaned the slate with a clear directive to strictly construe all the statutory provisions.

Further, the Court unequivocally stated that the statute was significantly altered in 2005. Because of those significant alterations prior case law or the historical intent of the workers’ compensation statute cannot be relied upon to circumvent the literal interpretation of the statutory language. By significantly altering the Act and saying the statute was to be strictly construed, the Court felt obligated to follow what they have defined as the legislature’s clear intent, which, by omission, says that the exclusive remedy of the Workers’ Compensation Act does not apply to occupational disease cases. ​

​KCP&L also looked to the jurisdiction portion of the statute which does state that occupational disease claims are compensable but the court indicated that 287.120 fails to provide that the workers compensation system is the claimant’s sole remedy for occupational diseases.  While the statutory provisions including 287.067 clearly indicate that occupational disease claims are included under the Workers’ Compensation Act and that employers are liable for those claims independent of the exclusive remedy portion of the statute, an employee now has the right to pursue parallel remedies through the workers compensation system as well as the Circuit Court.  The court justified this finding because there were other circumstances under the Act where an individual can pursue both workers’ compensation benefits as well as a circuit court action. This is obviously problematic whenever we consider all occupational disease claims. 

OBSERVATIONS

The strict construction of the statutory provisions of the Workers’ Compensation Act has now opened the door to potential liability on a much larger scale and in two concomitant venues.  It also creates an issue regarding insurance coverage and whether the workers’ compensation policy or the general liability policy will be applicable to any circuit court actions.

Additionally, while the burden of proof is a “preponderance of the evidence” in the Circuit Court, there is also the possibility that claimants/plaintiffs will include pain and suffering as an element of their damages. This inclusion will increase litigation costs, and if a case goes to trial, subject the result to the whims of a jury.