Changes In Workers’ Compensation Statute Has Unintended Consequences

In 2005, the Missouri General Assembly amended certain sections of the Workers' Compensation Act. Prior to 2005 Sec. 287.800 R.S.Mo. mandated that the Act "shall be liberally construed with a view to the public welfare". The 2005 amendment required that "reviewing courts shall construe the provisions of this chapter strictly". This and other changes in the Act resulted from the legislatures' belief that judicial decisions had misinterpreted the earlier statute and the 2005 amendment was designed to remedy this. It appears to have had the opposite effect. New judicial decisions have resulted in changes to the law involving the right of an employee to sue a fellow employee for damages and the right to sue one's employer for occupational disease injuries.

Suit Against Fellow Employee

The Missouri Workers' Compensation Act provides the exclusive remedy against employers for injuries caused by accidents arising out of and in the course of the employee's employment. Courts extended the statutory immunity to co-employees for negligence in performing a non-delegable duty of the employer. The case of State ex. rel Badami v. Gaertner, held that a co-employee could not be sued unless there was a showing of "something more" than a breach of the employer's duty to provide a safe workplace. The "something more" test required proof that a co-employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury. In the 2010 case of Robinson v. Hooker, Robinson sued a co-employee for damages when the co-employee lost her grip on a high pressure hose which struck Robinson in the eye. Based on the new requirement of strict construction the court held that the exclusivity provisions of the Act applied only to employers and not to employees and that Robinson could sue Hooker at common law. Robinson was widely interpreted as doing away with immunity involving co-employees. However, in 2012 the case of Hansen v. Ritter addressed a situation where a guard rail gave way causing the employee to fall. Suit was filed against the corporate safety manager and the operations manager for failure to provide the employee with a safe place to work. The court held that Hansen could not maintain a common law action against his fellow employees under the facts of the case. The law imposes on the employer certain non-delegable duties with regard to the safety of his employees. An employee can recover from a co-employee at common law for violation of a personal duty of care owed by the co-employee apart from the employer's non-delegable duties. Unless the injured employee asserts a personal duty owed by a co-employee that exists independent of the employer's non-delegable duties and that would exist independent of the master servant relationship, the employee cannot recover against a co-employee.

In 2012 the Missouri General Assembly again amended the Workers' Compensation Act granting employees limited immunity from suits by co-employees. Sec. 287.120 R.S.Mo. provides that "every employer and employees of such employer shall be released from all other liability whatsoever, whether to the employee or any other person, except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury." The law once more provides immunity to co-employees for injury resulting from ordinary negligence.

Common Law Suit Against Employer For Occupational Disease Injury

The 2005 changes in the Workers' Compensation Act resulted in a Missouri appeals court opinion which holds that workers' compensation is not the exclusive remedy for occupational disease claims. Monroe Gunter filed suit against his employer because of exposure to asbestos resulting in mesothelioma. The court held that Gunter's claims are not subject to the Act's exclusivity provisions because they do not arise out of an "accident". In citing the "strict construction" requirement of the 2005 amendment to Sec. 287.800 R.S.Mo., the court held that benefits under the Act are limited to injuries caused by accident and since mesothelioma does not result from an accident as defined by statute, Gunter could sue his employer. The court further held that suit against the employer is not an exclusive remedy and that the employee could opt to pursue occupational disease benefits under the Workers' Compensation Act. Two judges dissented.

The Missouri General Assembly is presently addressing this issue and further changes in the law may be expected.

LP Leritz & Plunkert, PC

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