In a recently published article written by Daniel Mehan, President and CEO of the Missouri Chamber of Commerce this “oversight” was highlighted as he noted that the Western District Court of Appeals ruled that workers’ compensation does NOT serve as the exclusive remedy for employees who may contract long-term, repeated exposure diseases. Translation: Employees can sue their employers in civil court as an additional remedy to workers’ compensation. Both legal avenues are now seemingly concurrently open for employees in the state of Missouri.
The court case that prompted this ruling involved Monroe Gunter (Monroe Gunter v. KCP&L Greater Missouri Operations Co., et al., Case No. 10CA-CV01079) who worked for KCP&L for thirty-four years before he retired in 1988. He was diagnosed with mesothelioma in February 2010. The court held that Gunter‘s claims were not subject to the exclusivity provisions of workers’ compensation because they did not arise out of an―accident as that term is defined in the statute.
MISSOURI CHAMBER SAYS: UNCERTAINTY AHEAD
“For decades employees who filed a worker’s compensation claim were precluded from filing a civil lawsuit against the employer for the same injury leading to the worker’s compensation claim. It appears this long-standing rule of law is now gone for long-term, repeat-exposure occupational diseases.”
With Missouri’s Second injury fund already being frozen by Missouri Attorney General Chris Koster who stopped paying people who were granted permanent total disability awards by a judge, the opportunity for many of these cases to turn to civil courts for relief just opened up. Employers in Missouri should have alarm bells going off in their heads right now. If you, as an employer operate a facility that exposes or potentially exposes worker’s to chemicals or other agents that may cause long-term disease as a result of repeated exposures you may now be subject to civil litigation at the same time as being on the hook for worker’s compensation claims.
Since the Missouri Attorney General’s office stopped settling cases against the fund in 2009, more than 30,000 cases are now pending and about 700 cases are filed each month waiting to be adjudicated. Not counting those cases, the fund’s estimated liability for awards already approved by judges is $1 billion. With Social Security Disability being the sole source of income for virtually all of the injured workers not being paid by the fund one can only guess at the number of people who will strongly consider remedies through civil action against their employers.
LEGISLATIVE FIX NOT LIKELY ANYTIME SOON
It is up to the Missouri legislature to resolve this issue. As the Court ruled “The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law.” As noted in Mehan’s article, the Missouri Legislature failed to address this issue: a remedy was blocked according to Mehan “through work of trial attorneys wanting more litigation against Missouri employers to garner more legal fees on the issue.” Thus placing Missouri employers in the unenviable position of being required to pay for workers’ compensation insurance knowing that workers can now seek civil action against them as well as filing for workers’ compensation benefits.
EMPLOYERS MUST PROVIDE A SAFE WORKING ENVIRONMENT
As a Missouri Employer it is now an imperative that you do everything to protect yourself from this risk. Including reviewing and updating your industrial hygiene safety programs, ensuring that all of your workers are protected at all times from dangerous or potentially disease causing agents in the workplace. Performing job hazard analyses (JHAs) for each specific job function, especially those relating to chemical storage, use and disposal. Consulting with experienced professionals in industrial hygiene and safety is a must for those employers without in house expertise. Training your supervisors and front line managers to recognize potential hazards and to effectively communicate the risk associated with those hazards to your workers, so they will take the necessary precautions to protect themselves is critical to protecting your organization against potential claims in the future.