The Missouri Bar
P.O. Box 119
Jefferson City, MO 65102
Phone: 573/635-4128
Fax: 573/635-2811
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by Caroline Bean
Exclusive Remedy Claimant was injured on the job in September 2003 while working on a residence hall construction project at Northwest Missouri State University in Maryville. Claimant was employed by a subcontractor which had subcontracted the masonry work on the construction project from the main contractor MWB. Claimant brought a personal injury suit against his employer, MWB, the scaffolding supplier, and two of his co-employees. MWB filed a motion to dismiss for lack of subject matter jurisdiction alleging that it was the statutory employer of the Claimant, and the exclusive remedy was under Missouri workers’ compensation law. The trial court denied MWB’s motion who sought relief from the Missouri Supreme Court by writ of prohibition. The Supreme Court held that, pursuant to Section 287.040 RSMo, MWB was the Claimant’s statutory employer. The Court looked at the following factors in determining MWB’s status: 1) the work performed by Claimant was pursuant to a contract and was in the usual course of MWB’s business; (2) MWB was an independent contractor who furnished all labor and materials and all employees for the construction of the residence halls, the university did not control the daily progress of MWB’s construction; and (3) the injury occurred in premises that were under the control of MWB, the university had given temporary possession and control to MWB as the general contractor so that the general public had no right to use them. Because MWB was the Claimant’s statutory employer, the Supreme Court held the trial court should have dismissed the matter for lack of subject matter jurisdiction as workers’ compensation law was the exclusive remedy.
State ex rel. MW Builders, Inc. v. Midkiff Liability of Second Injury
Fund Claimant settled his primary shoulder injury case with his employer for 25% permanent partial disability leaving the Second Injury Fund “Fund” as the remaining party. Appellant sought permanent partial disability benefits against the Fund claiming as his preexisting condition a condition in his cervical spine known as Klippel-Feil deformity. Prior to his primary right shoulder injury, the preexisting condition was unknown, undiagnosed and asymptomatic. Claimant lost no time from work due to the condition and it did not constitute an obstacle or hindrance to his employment or reemployment. The ALJ held that the Fund was not liable because the preexisting condition did not meet the necessary threshold for Fund liability in that it was not a “measurable or actual” disability at the time of the right shoulder injury. Claimant appealed. Appellant argued on appeal that the case of Garibay v. Treasurer of Missouri, 984 S.W2d 474, 479 (MO. App. E.D. 1998) changed the law concerning how latent preexisting conditions not manifesting until after the last injury are treated in evaluating Fund liability. He asserted that under Garibay the only inquiry needed in determining Fund liability was “whether there was a preexisting permanent and partial disability, known or unknown, at the time of employment which would thereafter combine with a new disability to cause a greater disability than the new injury.” The Court of Appeals disagreed with Claimant. Affirming the Commission, the Court found that Claimant’s preexisting condition was not disabling at the time of the injury and became disabling only after being triggered or aggravated by the primary shoulder injury. “In other words, it was not ‘an actual and measurable disability at the time the work injury [was] sustained’ and accordingly could not trigger Fund liability.”
Gary Portwood v. Treasurer Jurisdiction -Second Injury
Fund The Claimant worked for Owens Corning “Owens” in Kansas City, Kansas doing heavy labor for over thirty years. During his employment he suffered three separate injuries to his back in 1978, 1987 and 1993. His last day at work was August 22, 1999. The next day he had back surgery. In April 2001, Claimant filed a Missouri workers’ compensation claim for permanent total disability benefits. Claimant settled with the Employer in September of 2004 which was approved by a Missouri ALJ. The parties stipulated that they were operating under Missouri workers’ compensation law based upon a Missouri contract of employment. The Fund contested the Claim and was not a party to settlement between the Employer and the Claimant. A hearing on Claimant’s claim against the Fund was held on June 13, 2005. The ALJ ruled that Missouri did not have jurisdiction over the claim because Claimant had failed to prove a Missouri contract of employment. The Commission affirmed and the Claimant appealed. The Court found that because Claimant’s place of employment was Kansas City, Kansas, and all of his injuries occurred there, he could claim Missouri jurisdiction only if his employment contract was made in Missouri. At hearing, the Claimant had testified that while he was staying with his brothers in Missouri when he received phone calls from Owens in January and December 1968. In April 1968, he stopped working for a while to help his father in Nebraska and in December 1968 went back to work at Owens. He testified he had a one-on-one interview at the plant in Kansas but was later called, at another brother’s house in Kansas City, Missouri where he was living, and offered the job. On cross-examination, he acknowledged completing his first and only job application in January 1968 at Owens’s Kansas City, Kansas plant and had participated in a group interview with fifteen or so employees at the Kansas City, Kansas plant. The Commission had concluded that with doubts regarding Claimant’s status while he worked during the summer of 1968 in Nebraska, and doubts about which brother he roomed with at the time of Employer’s phone call in December of 1968, “the gossamer thread of a phone call from almost forty years ago is unconvincing in tethering Mr. Liberty’s claim for compensation from the Second Injury Fund.” The Court of Appeals agreed with the Commission’s findings that Claimant had not met his burden of proof proving a Missouri contract of employment. The Court further held that even if the Commission was in error in doubting that the December 1968 hiring was a new hiring, there was still a failure to establish jurisdiction as the testimony as to the phone call was “gossamer thin” due to the lack of corroboration.
Arthur Liberty v. Treasurer for the State of Missouri Causation-“Substantial Factor” The Employer Ford Motor Company appealed the Commission’s award of compensation to Claimant, for permanent partial disability and future medical, alleging the Commission had applied an incorrect burden of proof in making its final award. The Employer argued that based upon changes to the Missouri Compensation Act law in 2005, the Commission should have determined whether Claimant’s work activities were the “prevailing factor” in her work injury, rather than the “substantial factor.” Claimant filed her original claim in 2002, three years before the 2005 amendments to the statutes. Accordingly, the Commission in reaching its decision applied the pre-amendment statutory language of Section 287.020-- that, to be compensable, work must be a substantial factor in causing the resulting medical condition or disability. The Employer argued that the newer definition of a compensable injury by occupational disease of “prevailing factor” should be applied retroactively. Employer cited to the subsection 10 of the 2005 amendment to section 287.020 RSMo as evidence that the legislature intended the amendments to apply retroactively. The Court of Appeals disagreed with the Employer’s interpretation, affirming the Commission’s decision. The Court held that the language in Section 287.020.10 served as a clarification that any construction of the previous definitions by the courts were rejected by the amended definitions contained in section 287.020 and that there was no express language stating that it was the legislature’s intent to apply either Section 287.020 or 287.067 retroactively.
Linda Lawson v. Ford Motor Company
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