Workers' Compensation

Chris T. Archer, Esquire

A civil negligence suit filed by an employee against his employer for injuries sustained related to an occupational disease was allowed to proceed over a motion to dismiss based upon the exclusivity of the worker’s compensation act. The additional counts against co-employees were properly dismissed. Amesquita v. Gilster-Mary Lee Corp, et al., No. 99266 (Mo. App. E.D., September 10, 2013), Odenwald, J.

Claimant filed suit against his employer for negligence in exposing him to the hazard of an occupational disease stemming from diacetyl used as butter flavoring in popcorn. The count against his employer was dismissed based upon the exclusivity of the workers' compensation act. Suit was also filed against co-employees as individuals.

After the trial court granted the dismissal of the suit, the court reversed the dismissal of the suit as against the employer citing State ex rel. KCP&L Greater Mo. Operations Co. v. Cook, 353 S.W 3d 14 (Mo. App. W.D. 2011), finding § 287.120.2 as amended in 2005 did not provide employers protection from civil liability for occupational diseases filed by employees.

The court otherwise affirmed the dismissal of the counts filed against the co-employees affirming the similar holding in Hansen v Ritter, 375 S.W.3d. 201 (Mo. App. W.D. 2012).