On September 13, 2011, the Missouri Court of Appeals for the Western District issued its opinion in State ex rel. KCP&L Greater Missouri Operations Co. v. Cook, holding that workers’ compensation exclusivity does not apply to occupational injuries. The opinion reaffirms the Court's willingness to endorse far-reaching changes to long-settled interpretation of Missouri's worker's compensation laws — a willingness the Court first signaled in Robinson v. Hooker — where it held that an employee’s negligence claim against a co-employee was not pre-empted by the Missouri Workers’ Compensation Act. These developments come in the wake of the Missouri Legislature's 2005 Amendments to the Act and reflect a strict adherence to the text of those Amendments, which leave little room for the sort of judicial interpretations that have historically controlled employer liability related to employee health.
Last week's decision involved a non-workers' compensation personal injury claim filed by Monroe Gunter. Gunter was employed by KCP&L for thirty-four years before retiring in 1988. He was diagnosed with mesothelioma in February 2010. He filed a lawsuit against KCP&L in April 2010 alleging that he was exposed to asbestos during the course of his employment with KCP&L, causing his mesothelioma. KCP&L moved for summary judgment arguing that Gunter’s claim could only be remedied under the Workers’ Compensation Act — not in court. The circuit court denied KCP&L’s motion, and KCP&L filed for review with the Court of Appeals.
The Court of Appeals stated that the Workers’ Compensation Act distinguishes between two categories of compensable injuries: 1) injuries by accident; and 2) injuries by occupational disease. An “accident” is defined in the Act 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.” An “occupational disease” is defined as “an identifiable disease arising with or without human fault out of and in the course of employment.” The court stated that the Act draws a clear distinction between injuries arising by accident and those arising by occupational disease, and in light of the 2005 Amendments, this distinction could not be ignored. KCP&L conceded that Gunter’s injury was not an “accident” as that term is defined in the Act, and that his claim had to be analyzed as an "occupational disease."
The issue before the court was whether an “occupational disease” is covered by the exclusivity provision of the Act, which by its terms applies only to injury or death of the employee “by accident.” The court relied on the 2005 Amendments to the Act which require courts to “construe the provisions of this chapter strictly.” The court stated that this strict construction or plain meaning interpretation is required even where such an interpretation creates an outcome at odds with what the court believes the legislature intended.
In this case, that means that there is now a presumption against statutory preemption of common-law remedies. The court held that an “occupational disease” is not an “accident” under the clear terms of the Act. Thus, although occupational diseases are not covered by the Act's exclusivity provision, they remain compensable injuries for all other purposes. Therefore, under the KCP&L v. Cook decision, employees with an occupational disease have two potential avenues of relief; they may proceed either under workers’ compensation, or in court. Absent remedial legislation from Jefferson City, employers should be cognizant of and plan for both of these alternative sources of liability — especially in circumstances where occupational disease is a known concern.
Efforts to address this issue through legislative changes were unsuccessful in the 2011 General Assembly, but will likely be revived in the next legislative session.