Chris T. Archer, Esquire
“Compensation” includes the value of medical expenses paid for purposes of application of the 15% safety penalty of § 287.120.4 RSMo. Hornbeck v Spectra Painting, No. 95680 (Mo. App. E.D., September 6, 2011), Richter, J.
Claimant was injured in a compensable work related accident and asserted that the Employer violated the Scaffold Act, § 292.090 RSMo. They asserted that the violation of this state safety statute mandates application of a 15% penalty on all benefits and compensation inclusive of medical expenses paid or awarded. The court agreed and applied the 15% penalty as against all forms of compensation including the medical expenses paid or awarded as against the Employer but refused to include the value of the compensation awarded as against the Second Injury Fund.
It was the apparent intent of the legislature to allow civil litigation by an employee against his employer for occupational disease injuries; along with requiring an employer to provide workers’ compensation benefits as well for the same injury. State ex rel., et al. v. The Honorable Jacqueline Cook, No. 73462 (Mo. App. W.D., September 13, 2011), Ahuja, J.
Gunter worked for Kansas City Power & Light (KCP&L) for thirty-four years before he retired in 1988. He was diagnosed with mesothelioma in February 2010. In April 2010, Gunter filed a lawsuit against KCP&L, alleging that he was exposed to asbestos during the course of his employment for KCP&L and asserting claims against KCP&L on premises liability and negligence theories. In particular, Gunter alleged that, “[a]s an employer and user of asbestos products, [KCP&L] had a duty to maintain a safe working environment, a duty not to expose Plaintiff to asbestos and a duty to exercise reasonable care so as not to expose its workmen including Plaintiff to unreasonable risk of injury.”
In its answer, KCP&L asserted as an affirmative defense that Gunter’s claims are barred because his exclusive remedy, if any, is under Missouri’s
Workers’ Compensation Law. KCP&L filed a motion for summary judgment based upon its affirmative defense that Gunter’s claims against it are exclusively compensable in a workers’ compensation proceeding before the commission. In response, Gunter argued that, pursuant to the 2005 amendments to the Act, only claims arising out of an “accident” as defined in § 287.020.2 are subject to the Act’s exclusivity provisions, and that his claims do not involve an accidental injury.
The circuit court entered an order denying KCP&L’s summary judgment motion. KCP&L responded by filing a Petition for Writ of Prohibition. In a lengthy decision and opinion, the majority of the justices for the Western District Court of Appeals found that KCP&L failed to establish a right to a writ of prohibition. The court cited and plain language in the statute that now requires strict construction since the 2005 amendments to Chapter 287. Section 287.120.2, RSMo 2005, states: “The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee…on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.” The court stated that they did not address the claimant’s right to also pursue worker’s compensation benefits. “We need only decided whether his common-law claims are precluded by § 287.120, which they plainly are not.”