by Mary Hodges
The idea behind the Missouri workers’ compensation statute is to create a no-fault compensation system that essentially guarantees compensation to an employee for work-related injuries. In this quid pro quo system, the employee accepts reduced compensation and gives up the right to pursue legal remedies, such as common law negligence damages, against the employer. In turn, the employer agrees to be subject to a no-fault system with the certainty that work-related injury claims are addressed exclusively with the Division of Workers’ Compensation (“Division”).
In 2005, the Missouri Legislature made drastic amendments to the workers’ compensation laws such as to limit the types of claims that can be filed with the Division. It also increased the burden an employee has to meet to be entitled to benefits.
Prior to the 2005 amendments, workers’ compensation laws were broadly construed to include a large class of employees and a large class of injuries. The employee’s burden was to prove that his or her employment was a substantial factor in the resulting injury. Currently, the 2005 amendments require that the statute be strictly construed. It also raises the employee’s burden from “substantial factor” to “prevailing factor.” Before, an employee was only required to show that his employment was more than a minimal factor in causing the resulting injury. But now the employee must prove his employment was the primary reason for the injury. This essentially adds an element of fault to the employee’s burden. Moreover, the definition of “accident” was amended to exclude injuries such as those from ordinary deterioration of the body.
Many felt these amendments abolished the idea of the “quid pro quo, no-fault” system. These concerns were raised by a number of labor organizations when they filed suit against the Department of Labor and Industrial Relations claiming that the 2005 amendments to the statutes were unconstitutional.
In 2009, the Missouri Supreme Court issued an opinion in Missouri Alliance for Retired Americans, et al., v. Department of Labor and Industrial Relations, 277 S.W.3d 670 (Mo. en banc 2009). In its opinion, the Court, in a declaratory judgment, resurrected the availability of a civil common law negligence claim for some work related injuries because the 2005 amendments to the workers’ compensation laws left many injured employees with no legal recourse.
Subsequent to the Act, the statute narrowly defines the term “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” Section 287.020.2.
Furthermore, the statute’s exclusive jurisdiction clause states, “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 arising out of and in the course of the employee’s employment, and shall be released from all other liability therefore whatsoever….” In addition, “The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee … at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.” Section 287.120 (emphasis added). This section makes the act the exclusive remedy for the employee only on account of “such accidental injury or death.”
Taking the two clauses together, the Court determined that any worker excluded from the narrow definition of “accidental injury” would have right to bring suit under common law theories. However, the Court noted that the determination of whether a worker is subject to remedies under workers compensation laws or under common law shall be decided on a case-by-case basis.
More recently, the Missouri Court of Appeals for the Western District decided whether occupational disease claims fall within the exclusive remedy provisions of workers’ compensation law. In the case of Gunter v. KCP&L, Gunter was diagnosed with mesothelioma after working thirty-four years for KCP&L. In April of 2010, Gunter sued his employer on theories of premises liability and negligence. KCP&L asserted an affirmative defense that Gunter’s claims were barred because the exclusive remedy falls under Missouri workers’ compensation laws.
The Court also analyzed the Act’s definition of “accident” alongside its exclusive jurisdiction provisions as the Missouri Supreme Court did in Missouri Alliance. Furthermore, it reviewed the Act’s definition of “occupational disease” and found that since an occupational disease occurs over time and the disease cannot be linked to an identifiable time and place or a specific event during a single work shirt, it does not fall under the definition of the term “accident.” The Court determined that the Act’s exclusive remedy provisions are limited to injuries or death caused by an “accident” as defined in §287.020.2 and noted the Missouri Supreme Court’s decision in Missouri Alliance as a basis for its holding. The Court specifically noted that occupational disease claimants have an available but not exclusive workers’ compensation remedy. In late December, 2011, the Missouri Supreme Court allowed the decision to stand by declining to hear an appeal filed by the employer.
Therefore, an employee alleging an injury of an occupational disease is not limited to recovery under workers’ compensation laws and can also seek judicial remedies through common law claims against his or her employer.
Now that both avenues are available to occupational disease claimants, there are a number of factors to consider when determining which venue is most appropriate.
The first and probably most important thing to determine before filing a common law claim is whether the employer was negligent because often times, injuries can occur at work without negligence on the part of the employer. To prevail on a common law negligence claim the employee must be able to show: 1) the existence of a duty on the part of the employer to protect the employee; 2) a failure by the employer to perform that duty; and 3) a direct and proximate causal link between the employer’s failure and the plaintiff’s injuries. The employer’s actions must fall below the standard of reasonable care and the employer’s act or omission need only be the reasonable and probable cause of the injury. This is similar to the pre-2005 amendments “substantial factor” standard.
However, if filing a claim with the Division, the employee must be able to prove that the “occupational exposure was the prevailing factor in causing both the resulting medical condition and the disability.” Section 287.067.2. While this is a higher burden to meet, there is no necessity to prove the employer was negligent.
Another consideration is that if the employee files a common law claim, the employer can assert affirmative defenses such as assumption of risk, contributory negligence, or third party liability. Missouri has adopted a pure comparative fault system that allows for a reduction in damages to the employee based on any comparative fault of the employee or other mitigating factors. Therefore, it is important to determine whether the employee’s actions contributed to the injury.
On the other hand, filing a civil claim can open up the door for additional claims and damages such as pain and suffering and emotional distress. The employee is no longer subject to reduced benefits in exchange for no requirement of proving fault.
In sum, the 2005 amendments left occupational disease claimants in a better position than other injured employees. Those injured employees who are excluded from the Act can file a common law negligence claim but as previously stated, not all work related injuries arise from an employer’s negligence. Recovery for these employees can be very limited or in some circumstances, nonexistent. The injured employees who fall under the Act’s definition of “accident” are subject to the exclusive jurisdiction of the Division. However, occupational disease claimants can potentially recover under Missouri workers’ compensation laws and common law claims. At the very least, occupational disease claimants are given a choice of venue that is not afforded to other types of injured employees.