Mesothelioma suit allowed to continue in court

In Missouri, the workers' compensation exclusivity provision does not apply to occupational disease claims.

Case name: State ex rel. KCP&L Greater Missouri Operations Co. v. Cook, No. WD73462 (Mo. Ct. App. 09/13/11).

Ruling: The Missouri Court of Appeals held that a worker's suit related to his occupational disease did not fall within the exclusive remedy provisions of workers' compensation so his suit could continue.

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What it means: In Missouri, the workers' compensation exclusivity provision does not apply to occupational disease claims.

Summary: A worker sued his employer, alleging that his work-related exposure to asbestos caused him to develop mesothelioma. The employer asserted as an affirmative defense that the worker's claims were barred because workers' compensation was his exclusive remedy. The Missouri Court of Appeals held that the worker's claims were not subject to the exclusivity of workers' compensation because they did not arise out of an "accident" as the term is defined.

The court explained that there is a clear distinction between injuries by accident and injuries by occupational disease in the workers' compensation statute. The employer acknowledged that the worker's claims did not arise out of an "accident" as it is defined. The court explained that the statutes were consistently interpreted broader to include occupational disease claims before amendments were made in 2005. The amendments also modified the standards for compensability of occupational disease claims.

The employer argued that since repeat exposure occupational disease claims are compensable under workers' compensation, the exclusivity provisions must apply. The court disagreed but admitted that this represented a departure from prior law. The court pointed out that other states recognize parallel remedies through workers' compensation and the courts in a variety of circumstances.

A dissenting judge opined that the decision was contrary to the legislature's intent. The judge said the majority's opinion restricted and could have eliminated workers' compensation coverage for occupational diseases. Another dissenting judge pointed out that the primary jurisdiction for any claim of workplace injury arising out of an employment relationship is in workers' compensation.

Read more at the WorkersComp Forum homepage.

October 27, 2011

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