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					                                                        Workers’ Compensation




Materials Provided by
Felicia J. Ford ............................... H-1.1

Materials Provided by
LaShonda L. Lambert .................. H-2.1
                                                                                                  H
Materials Provided by
Michael A. Moroni ....................... H-3.1

Materials Provided by                                   Please refer to course material CD for
Patrick J. Platter........................... H-4.1
                                                        complete materials on this topic.




                                                        Carla Fields Johnson & Charles R. Brown
                                                                (Kansas City)
                                                        Felicia J. Ford (St. Louis)
                                                        Truman E. Allen (Jefferson City)
                                                        Michael A. Moroni (Cape Girardeau)
                                                        Patrick J. Platter (Springfield)
                                                        LaShonda L. Lambert (St. Charles)
                                                
                                                
                                                
                                                
                                                
   WORKERS’ COMPENSATION LAW UPDATE 2012 
                                                
                                                

                              Felicia J. Ford 
                                              
                                  Felicia J. Ford, P.C. 
                           111 West Port Plaza, Suite 600 
                                 St. Louis, MO 63146 
                    PH:  (314) 542‐3167         FX:  (888) 282‐0473 
                                 www.fjfordlaw.com 
                                Felicia@fjfordlaw.com 




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                                          H-1.1
       INJURY FROM PARTICIPATION IN A CHARITY GOLF TOURNAMENT
                                  IS NOT COMPENSABLE
Scott Beine v. County of St. Charles and the Second Injury Fund, No. ED96581 (Mo. App. E.D.
2011).

Claimant worked for the St. Charles County Sheriff's Department as a deputy sheriff. Claimant
was an active member of the St. Charles County Deputy Sheriff's Association, a voluntary, non-
profit association of sheriff's deputies. The Association sponsored a charity golf tournament at
the Whitmoor Country Club to fund their annual event. Employer did not participate in either
planning or promoting the golf tournament. Participation in the golf tournament was voluntary,
and Employer required its employees to use compensatory or vacation time to attend the
tournament. Employer did not permit employees to wear their uniforms or use Employer's
vehicles for transportation to the event, at which alcohol was served.

The Claimant was injured while playing golf in the charity golf tournament when a nearby golfer
hit a ball, striking Claimant in the forehead. Claimant received authorized treatment for a
forehead laceration and subcutaneous contusion. After the injury, Claimant sought treatment
from numerous medical professionals for his continuing symptoms, which included: tinnitus,
poor balance, memory loss, severe and frequent headaches, insomnia, mood swings, and
depression. Claimant was unable to resume work, and terminated.

The ALJ denied Claimant benefits reasoning that Claimant's injury "did not result from any
increased risk connected to" his employment as a deputy for Employer. The ALJ also found
that the charity golf tournament was a voluntary "recreational activity" under Section
287.120.7 and was, therefore, not compensable under workers' compensation law. The Labor and
Industrial Relations Commission denied his claim for workers' compensation benefits. The
Claimant appealed asserting the Commission erred in finding that: (1) Claimant's injuries did not
arise out of or in the course of employment; (2) Claimant's participation in a "recreational
activity" was the prevailing cause of his injuries; and (3) Claimant's participation in the golf
tournament provided no benefit to his employer.

On appeal, the court concluded Claimant's injury resulted from "a hazard or risk unrelated to"
Claimant's employment to which he would have been equally exposed on any golf course in his
"normal non-employment life." Thus, Point denied. Regarding claimant’s second point on
appeal, the Court determined that there was no need to determine whether the mutual benefits
doctrine remained viable law because the Commission specifically found that Claimant's
participation in the golf tournament provided no benefit to Employer. Finally, on point 3 of
Claimant’s appeal, the Court noted the Commission may not arbitrarily disregard and ignore
competent, substantial, and undisputed evidence of witnesses who are not shown by the record to
have been impeached. Bond v. Site Line Surveying, 322 S.W.3d 165, 171 (Mo.App.W.D. 2010).
Nor may the Commission "base its findings upon conjecture or its own mere personal opinion
unsupported by sufficient and competent evidence." Id. (quotation omitted).
However, on review the Court noted the record revealed that, contrary to Claimant's contention,
his expert, Prof. Novak's testimony was disputed. The Sheriff specifically stated that, based on
his education, experience, and sense of the St. Charles County community, Claimant's

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                                             H-1.2
participation in the golf tournament did not benefit Employer. Furthermore, the Commission did
not "disregard and ignore" Prof. Novak's testimony. Rather, the Commission considered the
expert's testimony and found that it lacked credibility because it: (1) focused on the Shop-With-
A-Deputy event, rather than the golf tournament; and (2) was "based on gross generalities
regarding community policing without any direct information on community policing in St.
Charles County . . . ." The Court of Appeals affirmed the Commission's decision.


                 EXCLUSIVE REMEDY: WORKERS’ COMPENSATION
State ex rel. KCP&L Greater Missouri Operations Co. v. Cook, WD73462 (Mo. App., 2011)

Monroe Gunter worked for 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 and various other companies. In his first amended petition, Gunter alleged that he was
exposed to asbestos during the course of his employment for KCP&L and that this asbestos
exposure directly and proximately caused him to develop mesothelioma. He asserted claims
against KCP&L on premises liability and negligence theories. Employer asserted as an
affirmative defense the claims were barred because of the exclusive remedy of Missouri
Workers’ Compensation Statute. All other defendants either settled or were dismissed.
Employer filed a motion for summary judgment relying on the affirmative defense of exclusivity
of workers’ compensation and the Commission. Gunter argued that, he does not have an
“injury” pursuant to the 2005 amendments to the Act.

The Appellate Court looked to the Missouri Supreme Court's decision in Missouri Alliance for
Retired Americans v. Department of Labor & Industrial Relations, 277 S.W.3d 670 (Mo. banc
2009) (“MARA”) for guidance. In that opinion the Supreme Court noted that the exclusive
remedy of the Workers’ Compensation Statute existed only for those “injuries” that fell within
the definition of the term “accident” under the act. Thus, workers excluded from the act by the
narrow definition of “accidental injury” have a right to seek remedies under the common law by
bringing a civil suit because they no longer fall within the exclusivity provision of the act as set
out in section 287.120.

The Appellate Court relied on the reasoning in Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo.
App. W.D. 2010) regarding strict construction and its application both to § 287.120, and to the
definitions of words used in that section. Consistent with MARA, the Court noted that Robinson
recognizes that, "[e]ven though the language of the exclusivity provision was not amended in
2005, the scope of employer immunity was narrowed by the new lens of strict construction."
Under the canon of strict construction, we cannot add injuries by occupational disease to
§287.120.1 and .2, when the provisions unambiguously refer only to injuries caused "by
accident." Id.

The Appellate Court in this case determined that the plain language of § 287.120 leads to the
conclusion that Gunter is entitled to proceed in the circuit court on his claims for occupational
disease against KCP&L, and the circuit court correctly denied the motion for summary
judgment. The Court noted that § 287.120's exclusivity provisions do not apply to occupational
disease claims.

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                                               H-1.3
              EXCLUSIVITY OF WORKERS' COMPENSATION LAW:
   Commission determines Questions of Facts, Circuit Court determines Questions of Law
Cooper v. Chrysler Grp. LLC, No. ED96549 (Mo. App., 2011).

On March 7, 2007, the plaintiff slipped on the floor of his employer's place of business in the
course and scope of his employment. The plaintiff filed a claim for compensation with the
Division of Workers' Compensation for injuries to his back and to his body as a whole from the
slip and fall. Defendant filed an answer admitting employment, that the parties were subject to
the Missouri Workers' Compensation Law, and admitting the work accident. Defendant provided
physical therapy as treatment for the injuries he allegedly sustained. Defendant disputed medical
causation, and asserted that claimant's surgery in 2008 was not necessitated by the fall.

Plaintiff filed a civil lawsuit alleging damages based on the same set of facts and injury as the
workers' compensation claim. Defendant asserted the affirmative defenses of the exclusivity of
plaintiff's remedy under the Workers' Compensation Law and filed a motion for summary
judgment based on that ground. At all times the, plaintiff's workers' compensation claim was
pending. Plaintiff argued against summary judgment that the Act was not the exclusive remedy
because the fall was not "the prevailing factor" in plaintiff's injury and was not an "accident" as
defined in the Workers' Compensation Law. Summary judgment was entered in defendant's
favor.

For his sole point on appeal, plaintiff asserted the trial court erred in granting defendant's motion
for summary judgment because defendant's denial of plaintiff's claim on the basis that the slip
and fall incident was not the prevailing factor in plaintiff's medical condition takes the claim
outside the exclusive scope of the workers' compensation law in that plaintiff's incident is not an
injury or accident as defined by the act.

The Plaintiff relied on Missouri Alliance v. Dept. of Labor, 277 S.W.3d 670 (Mo. banc 2009)
(plurality opinion) arguing the 2005 amendments to the Workers' Compensation Law narrowed
the definition of "injury". He further argued that, if his injury was not within that definition, then
he had a right to bring a civil action. In Missouri Alliance, the Court concluded "Workers
excluded from the act by the narrower definition of 'accidental injury' have a right to bring suit
under the common law, just as they could and did prior to the initial adoption of the act." Id. at
680.

In this case, the Court of Appeals reviewed the basis for primary jurisdiction. The Court pointed
out that Missouri Alliance, did not address or purport to change the primary jurisdiction doctrine,
under which the Commission has original jurisdiction to determine issues of fact within its
jurisdiction. The primary jurisdiction doctrine provides that “courts will not decide a controversy
involving a question within the jurisdiction of an administrative tribunal until after that tribunal
has rendered its decision.” Killian v. J & J Installers, Inc., 802 S.W.2d 158, 160 (Mo. banc
1991). The Appellate Court further reasoned that the primary jurisdiction doctrine applies to
questions involving "administrative expertise, technical factual situations and regulatory systems
in which uniformity of administration is essential." Jones v. Jay Truck Driver Training Center,
709 S.W.2d 114, 115 (Mo. banc 1986), overruled on other grounds by McCracken v. Wal-Mart
Stores East, LP, 298 S.W.3d 473, 479, 479 n.3 (Mo. banc 2009).

Case	Law	Update	Workers’	Compensation	‐2011	                                                  	Page	4	
 
                                                H-1.4
The Appellate Court concluded that under the primary jurisdiction doctrine, whether there was
an "accidental injury" and whether the need for the 2008 surgery was caused by the workplace
accident are clearly disputed questions of fact that the circuit court does not have the authority to
decide because they are within the Commission's original jurisdiction.

Therefore, entry of summary judgment was premature until the Commission has decided the
question of accidental injury. Trial Court reversed and the case remanded for a stay of
proceeding.

              INTERVENING IN A WORKERS’ COMPENSATION CASE
United States Dep't of Veterans Affairs v. Boresi, No. ED97042 (Mo. App., 2012).

Veteran Mark Hollis had a pending workers' compensation claim alleging injuries sustained
while working for his employer. Claimant received unauthorized medical treatment from the
U.S. Department of Veteran's Affairs ("VA"). The VA filed a motion to intervene in the
workers' compensation case under 38 U.S.C. 1729 (2006). The motion was denied by the ALJ.
The VA filed a petition for writ of mandamus with the circuit court requesting the ALJ be
directed to rescind the denial and allow the VA to intervene as a party in the case. The circuit
court denied the writ, so the VA appealed.

On appeal, the VA argued that the plain language of 38 U.S.C 1729 requires that the VA be
allowed to intervene as a party in a Missouri worker's compensation claim to assert a claim for
payment of unpaid medical expenses that the employee had a right to assert under Missouri law.
However, the Appellate Court held that since the employee would not be entitled to receive
payment under Missouri law, the VA's point lacked merit. The Court pointed out that an ALJ is
not permitted to allow a private provider of unauthorized medical treatment to intervene or
participate in a workers’ compensation claim.

The VA relied on 38 U.S.C. Section 1729(a)(1) which allows for the U.S. to recover or collect
reasonable charges for care rendered for non-service related disability. Under 38 U.S.C. Section
1729(b)(2)(A) the U.S. may intervene or join an action brought by a veteran.

The Court concluded that because the Claimant received unauthorized medical care at the VA’s
medical center, under Missouri law he was not entitled to receive any payment from Employer.
Circuit Court affirmed.

               SURVEILLANCE: DISCOVERABLE THROUGH SUBPOENA
State ex rel. David Feltz v. Bob Sight Ford, Inc., Case No. WD72969 (Mo. App. W.D. 2011)

Claimant filed a workers' compensation claim alleging that he was injured when he tripped over
carpeting on a stairway while working for employer. Claimant noticed the adjuster for deposition
and subpoenaed surveillance video. Employer’s motion to quash deposition and subpoena duces
tecum was granted with the ALJ citing Section 287.215. Circuit court held a hearing and issued
a permanent order in mandamus, compelling the ALJ to order production of the surveillance
videotapes. Employer appealed.

Case	Law	Update	Workers’	Compensation	‐2011	                                                  	Page	5	
 
                                               H-1.5
The Court pointed out that the Claimant made his request for the video surveillance pursuant to
the formal discovery provisions of Section 287.560 and not through the less formal provisions of
Section 287.215. The Court reasoned the scope of the definition of the term “statement” from
the 2005 amendment of the workers’ compensation statute applies only to Section 287.215.
Circuit Court’s Permanent Order of Mandamus, affirmed.

   SAFETY VIOLATION OF AN EMPLOYER - THE SCAFFOLDING ACT §292.090
Terry Hornbeck v. Spectra Painting, Inc. and Treasurer of the State of Missouri, Second Injury
Fund, Case No. ED 95680 (Mo. App. E.D. 2011)

Claimant was painting a restaurant roof and tried to reach the roof by scaling a ladder atop a
small scaffold. The ladder and scaffolding collapsed and Claimant fell approximately ten feet to
the concrete below. Claimant hit the ground feet first and then crumbled to his left side.
Employer provided treatment and Claimant was released at MMI in April 2007. In October 2007,
Claimant sought treatment on his own. A hardship hearing was held in January 2008. The ALJ
found that: (1) Claimant was at "MMI" on April 24, 2007; (2) Claimant was not entitled to
unpaid medical expenses or future medical treatment; (3) Claimant was not entitled to additional
TTD benefits; (4) Employer did not violate Section 292.090 ("Scaffolding Act") ; (5) no award
for Claimant’s attorneys' fees and costs; (6) an award of PPD; (7) Claimant's injuries warranted a
5% multiplicity factor; and (8) Claimant entitled to compensation from the Fund.

The Commission, affirmed the ALJ's determination of MMI and Claimant’s failure to show the
accident was the prevailing factor causing a need for additional treatment. The Commission
determined no underpayment of TTD benefits and reversed the ALJ by finding a Scaffolding Act
violation ordering a 15% enhancement of Claimant's award. Both parties appealed.

On cross-appeal, Employer argued the Commission erred in awarding Claimant a 15%
enhancement to his award after finding that Employer violated the Scaffolding Act. According to
RSMo Section 287.120.4, a workers' compensation claimant is entitled to a 15% increase in
compensation "where the injury is caused by the failure of the employer to comply with any
statute in this state."

The Appellate Court agreed with the analysis of the Commission that the Scaffolding Act was
clearly applicable to the facts surrounding Claimant's injury. The Court pointed out that it was
undisputed that the scaffolding structure on which Claimant stood collapsed and caused
Claimant's compensable injuries.

The Court cited Propulonris v. Goebel Constr. Co., 213 S.W. 792 (Mo. 1919) wherein the
Missouri Supreme Court determined that requiring an employee to show negligence to meet his
burden would strip away the statute's intended effect if it were the plaintiff's burden to "point out
a specific defect in the scaffold or platform which was furnished him”. Id. at 795. Thus, holding
that the fall of a scaffold is prima facie evidence of negligence of the employer and a violation of
the statute. The Appellate Court agreed with the reasoning of this long standing decision of the
Supreme Court and affirming the assessment of the 15% penalty against the employer.


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                                               H-1.6
The Appellate Court concluded the 15% penalty is to be applied to the PPD benefits awarded,
including the indemnity amount, and to the TTD and medical benefits already paid. It will not
include the benefits payable by the Second Injury Fund. The Commission's decision regarding
the application of the 15% penalty is reversed and remanded and the remainder of the
Commission's decision is affirmed.

                                SAFETY VIOLATION:
             EVIDENCE OF EMPLOYER DISCIPLINE IS NOT NECESSARY
Thompson v. Ici Am. Holding F/K/A Nat'l Starch & Chem., 347 S.W.3d 624 (Mo. App., 2011).

Claimant attempted to replace three broken drive belts on a “blending blower”. He cut the
electrical power, but failed to eliminate the reverse air flow to the blower, so the sheave
continued to rotate. Instead of shutting off the air valve to the blower or seeking help they
inserted an aluminum broom handle into the machine to stop it but it, broke causing injury to
Claimant. The ALJ awarded benefits for TTD, PPD, and medical costs and assessed a 37.5%
reduction to Claimant’s award pursuant to § 287.120.5. The Commission affirmed

The Court reasoned that the workers’ compensation statute doesn’t require evidence from the
employer of enforcement of a safety rule by employer imposing discipline on employees who
violate the rules. The statute requires the employer make, “reasonable effort[s] to cause [its]
employees ... to obey or follow the rule[s].” Therefore, employer’s efforts to train and monitor
employee compliance with safety regulations are relevant to determine if reasonable steps were
taken to ensure employee compliance. It was clear from the record that employer actively and
repeatedly trained and tested its employees on safety rules.

Claimant argued that the disparity between the 25% - 50% penalty applicable to employees
under § 287.120.5 as compared to 15% against employers under § 287.120.4 was in violation of
the equal protection clause of Missouri Constitution. The Court reasoned that the penalty against
employers is assessed only after the employer has already been held liable to fully compensate
the employee for a work-related injury. The penalty is to discourage the employer from similar
future injury-causing conduct. Conversely, the penalty against the employee is designed to shift
some of the financial burden on the claimant. In the end, the Court concluded that conclude that
employers and employees are not similarly situated when the penalty portions of the statute are
applied. Commission affirmed and award modified.

               DETERMINATION OF NEED FOR MEDICAL TREATMENT
Phyllis Tillotson v. St. Joseph’s Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011).

Claimant a registered nurse, sustained injury while assisting another nurse move a patient who
was lying in bed when the bed began to roll causing her to lose her balance. Claimant bounced
off the wall, striking her right knee against a chair. She may also have twisted her knee.

Employer authorized an evaluation by Dr. Perll who determined Claimant had torn her lateral
meniscus. The doctor noted Claimant had some degenerative changes involving the medial
meniscus related to arthritis. Employer authorized an evaluation by an orthopedic surgeon, Dr.
Van den Berghe, who confirmed the diagnosis. Dr. Van den Berghe determined an arthroscopy

Case	Law	Update	Workers’	Compensation	‐2011	                                               	Page	7	
 
                                              H-1.7
                           Materials Provided by LaShonda L. Lambert
                            Please refer to CD for complete materials.

                MISSOURI WORKERS’ COMPENSATION CASELAW UPDATE

                        Accident, Injury, Mutual Benefit, Dual Purpose
                               And Personal Comfort Doctrine

         Johme v. St. John’s Mercy Health Care, 2011 Mo.App. Lexis 1412
(Mo.App.E.D.2011), held an employee could not recover benefits when, while making coffee,
she slipped off her sandal, fell, and injured her pelvis. Johme worked as a billing representative
for St. John’s Mercy Healthcare. On the day of the accident, Johme left her cubicle and went to
the kitchen area of the office, began making coffee, turned, and slipped off the side of her sandal,
injuring her right hip. The floor did not have any irregularities or hazards, and there was no
evidence of any negligence on behalf of St. John’s.

       Under the Act as amended in 2005, whether the injury arose out of employment
depended on whether it came from a hazard or risk unrelated to employment, to which workers
would have been equally exposed outside of and unrelated to employment, in non-employment
life. An injury would not be deemed to arise out of employment if it merely happened to occur
while employee was working, but work was not a prevailing factor, and the risk involved was
one to which the worker would have been equally exposed in normal, non-employment life.

       The injury did not occur because Johme fell due to some condition of her employment.
She wore sandals to work of her own accord, and there was no allegation the floor of the kitchen
area had any spills or other hazards. Nothing about her employment as a billing representative
caused the fall and injury, and thus, the court could not say it arose out of her employment.

        The Eastern District held the Industrial Commission erred in finding Johme’s injury
compensable under the personal comfort doctrine, and in finding that doctrine was consistent
with Section 287.020.3, defining the term “injury”, as amended in 2005. As the Industrial
Commission noted, courts traditionally recognized that some activities were inevitable and
essential to a worker’s personal comfort and convenience, and an injury which arose during the
performance of one of these activities was compensable.

        The Industrial Commission’s reliance on the personal comfort doctrine was
inappropriate, because it directly contradicted the legislature’s explicit instructions for construing
the Act. Prior to 2005, the statute provided for a liberal construction. As amended, however, the
statute required ALJs and the Industrial Commission to construe provisions of the Act strictly.
Under strict construction, the statute was to be given its plain meaning, and it was not to be
enlarged beyond that meaning. Had the legislature intended to qualify the meaning of “arising
out of and in the course of” employment, it could have done so in the 2005 amendments.
Instead, the personal comfort doctrine language was conspicuously absent. Reading it into the
statute violated the requirement that courts strictly construe the Act’s provisions. Since the plain
language of the Act did not contain a personal comfort qualification, the Industrial Commission
acted beyond its powers in applying the doctrine. In enacting the amendments, the legislature
specifically sought to make it more difficult to obtain workers’ compensation, and the personal
comfort doctrine was not consistent with that purpose.




                                                H-2.1
        State ex rel KCP&L v. Cook, 2011 Mo.App. Lexis 1161 (Mo.App.W.D.2011), held an
occupational disease did not arise from an “accident” as defined by Section 287.020.2 of the
Act, and therefore, the exclusivity provision of Section 287.120 was inapplicable. Gunter
worked for KCP&L for 34 years before retiring in 1988. In February 2010, he was diagnosed
with mesothelioma. In April 2010, Gunter filed a lawsuit against KCP&L, 16 manufacturers of
asbestos-containing products, and various “John Doe” companies that designed, manufactured,
distributed, supplied, used or handled asbestos-containing products to which he was allegedly
exposed. In his first amended petition, Gunter alleged he was exposed to asbestos during the
course of his employment for KCP&L, and this asbestos exposure directly and proximately
caused him to develop mesothelioma. He asserted claims against KCP&L on premises liability
and negligence theories, asserting KCP&L had a duty to maintain a safe working environment, a
duty not to expose him to asbestos and a duty to exercise reasonable care, so as not to expose its
workmen, including Gunter, to unreasonable risk of injury.

        In its answer, KCP&L asserted as an affirmative defense that Gunter’s claims were
barred because his exclusive remedy, if any, was under the Workers’ Compensation Act. Every
defendant, other than KCP&L, was dismissed from the lawsuit. KCP&L filed a motion for
summary judgment, based on its affirmative defense that Gunter’s claims against it were
exclusively compensable in a workers’ compensation proceeding. Gunter argued that pursuant
to the 2005 amendments to the Act, only claims arising out of an “accident” as defined in
Section 287.020.2 were subject to the Act’s exclusivity provisions, and his claims did not
involve an accidental injury. The circuit court entered an order, denying KCP&L’s summary
judgment motion. KCP&L filed a petition for writ of prohibition. The Court of Appeals issued a
preliminary writ.

        Determining whether Gunter’s claims were subject to the Workers’ Compensation Act’s
exclusivity provision required the court to interpret and apply the workers’ compensation law.
The Act distinguished between two general categories of compensable injuries: 1) injuries by
accident; and 2) injuries by occupational disease. The only statutory provision which arguably
barred Gunter from proceeding against KCP&L in the circuit court was Section 287.120. It
provided every employer subject to the provisions of the Act shall be liable, irrespective of
negligence, to furnish compensation under the provisions of the Act for personal injury or death
of the employee by accident arising out of and in the course of the employee’s employment, and
shall be released from all other liability therefore whatsoever, whether to the employee or to any
other person. The term “accident” as used therein included, but was not limited to, injury or
death of the employee caused by the unprovoked violence or assault against the employee by
another person. Section 287.120.2 stated the rights and remedies granted therein to an employee
shall exclude all other rights and remedies of the employee or his dependents, at common law or
otherwise, on account of such accidental injury or death, except such rights and remedies as were
not provided for in the Act.

       Although the Act drew a clear distinction between injuries by accident and injuries by
occupational disease, the plain language of Section 287.120 limited those sections to injuries or
death caused “by accident”. KCP&L acknowledged Gunter’s claims did not arise out of an
“accident”, as that term was defined by the Act, but argued that Section 287.120’s exclusivity
provisions should not be strictly limited to “accidents”, as defined in Section 287.020.2.

                                               1
                                              H-2.2
       Rejecting this contention, the court concluded that because Section 287.120.2 only denied
Gunter a common law remedy for personal injury or death of the employee by accident,
KCP&L’s concession that the case did not involve an accident, as that term was statutorily
defined, defeated its reliance on Section 287.120.

        The conclusion that the Act’s exclusivity provision was limited to injuries or death
caused by an accident was confirmed by the Missouri Supreme Court’s decision in Missouri
Alliance for Retired Americans v. Department of Labor & Industrial Relations (MARA).
Therein, the Supreme Court found the definitions of “accident” and “injury” were utilized in the
exclusivity clause and amendment of those definitions impacted the scope of the Workers’
Compensation Act. The workers’ compensation law was the exclusive remedy only for those
injuries that came within the definition of the term “accident” under the Act. If the injury was
not one that was included within the term “accident”, as defined in the Act, then under Section
287.120.1, that injury was not subject to the exclusivity provisions of the Act. Workers excluded
from the Act by the narrow definition of “accidental injury” had a right to bring suit under the
common law, just as they could and did prior to the initial adoption of the Act.

        The holding of MARA was consistent with decisions specifying the showing an employer
must make to prevail on a motion for summary judgment asserting the affirmative defense of
workers’ compensation exclusivity: the first element that must be established is that the
employee’s claim was based on an accident arising out of and in the course of employment. The
court was bound by the Supreme Court’s ruling in MARA – that the Act was the exclusive
remedy only for those injuries that came within the definition of the term “accident”. As
KCP&L conceded, Gunter’s occupational disease-related claims did not arise out of an accident,
as defined by the Act. Under MARA, therefore, Gunter had a right to bring suit under the
common law, because he no longer fell within the exclusivity provision of the Act, as set forth in
Section 287.120.

         Since KCP&L admitted Gunter’s claim did not arise from an “accident”, as statutorily
defined, his claim did not trigger Section 287.120. Section 287.120.1 explicitly stated the
Workers’ Compensation Act provided the exclusive remedy only for claims for personal injury
or death of an employee by accident. “Accident” was defined in a manner which excluded
Gunter’s claims, as KCP&L conceded. Under the rule of strict construction, as provided for in
the 2005 amendments, Section 287.120.1 had to be confined to matters affirmatively pointed out
by its terms. The court was not authorized to give Section 287.120.1 any broader application
than was warranted by its plain and unambiguous terms. The plain language of Section 287.120
led to only one outcome: Gunter was entitled to proceed in the circuit court on his claim for
occupational disease against KCP&L, and the circuit court correctly denied KCP&L’s motion for
summary judgment, which sought to prevent him from doing so.

        KCP&L argued that because repeat-exposure occupational disease claims were covered
by and compensable under the Act, the Act’s exclusivity provisions must necessarily apply to
such claims. The existence of a workers’ compensation remedy did not, by itself, necessarily
establish the statutory remedy was exclusive. Rather, the exclusivity of any remedy provided by
the Act depended on the scope of the Act’s exclusive remedy provision, contained in Section

                                               2
                                              H-2.3
287.120. Employer liability for occupational disease claims did not depend on those claims
falling within Section 287.120. That statutory provision was not the only provision to impose
liability on employers for work-related injury claims. Rather, Section 287.063 and Section
287.067 provided for compensability of occupational disease claims, generally. Notably, and
unlike the prior statute, those provisions made occupational disease claims compensable, and
made employers liable for such claims, without reference to the definition of “accident” in
Section 287.020.2. Thus, occupational disease claims were made compensable under the Act,
and employers were rendered liable for such claims, independent of Section 287.120, including
its exclusivity provisions.

        The court’s holding – that Section 287.120’s exclusivity provisions did not apply to
occupational disease claims – was fully consistent with the other sections of the Act, which
provided for the compensability of such claims through the workers’ compensation system.
Ultimately, the issue was not whether repeat-exposure occupational disease claims were
compensable through the workers’ compensation system. Gunter was not seeking to pursue a
workers’ compensation remedy for his occupational disease – related claims. Rather, he was
seeking to pursue a judicial remedy. The court needed only to determine whether Gunter’s
common law claims were precluded by Section 287.120, which they were not. Thus, the circuit
court did not err in denying KCP&L’s motion for summary judgment.




         Wilson v. Ricky Wilson, 2011 Mo.App. Lexis 1672 (Mo.App.W.D.2011), upheld the
denial of a compensation claim where the evidence showed the employee deviated from going to
a business meeting destination, and had a car accident on his way to hunt deer at an associate’s
property. Wilson was the owner and employee of a company which moved mobile homes from
sale sites to buyers’ places of installation. Wilson was injured in a single vehicle accident while
he was on the way to hunt deer. Evidence showed that on the same day he was to hunt deer,
Wilson was to meet an individual at Iseman Mobile Homes to discuss the possibility of Wilson
providing transport and setup for mobile homes sold by Iseman. Wilson was severely injured
when he drove his truck off a bridge.
         Following the accident, Wilson filed a compensation claim, alleging he was injured in the
course and scope of employment. The ALJ awarded compensation, finding both the dual
purpose doctrine and mutual benefit doctrine applied. Employer appealed to the Industrial
Commission, which reversed the award, and denied compensation. The Industrial Commission
found because Wilson was on his way to go hunting for deer when the accident occurred, there
was no dual purpose or mutual benefit to the employer to make the accident compensable. On
appeal, the Western District affirmed.

        The appellate court rejected Wilson’s argument that his injuries were compensable under
the dual purpose and mutual benefit doctrines. An injury arose in the course of employment if
the accident occurred within the period of employment at a place where the employee may
reasonably be, while in the furtherance of the employer’s business, or performing activities
incidental to the employment. Injuries that occurred while an employee was performing

                                               3
                                              H-2.4
activities for the dual purpose of the employer and employee, or for the mutual benefit of both,
were compensable.

        The mutual benefit doctrine applied if an employee was injured while engaged in an act
that benefitted both the employer and employee, and some advantage to the employer resulted
from the employee’s conduct. Where travel was involved, the mutual benefit doctrine was
known as the dual purpose doctrine, because the work of the employer created the necessity for
travel, even though the employee might be serving some purpose of his own. For the dual
purpose doctrine to apply, the finder of fact had to be able to infer the employee would have
made the journey, even though the private purpose was absent.

       The Industrial Commission found Wilson’s trip began in Independence, Missouri, with
the purpose of meeting with an individual from Iseman Mobile Homes in Chillicothe to discuss
potential business. Wilson argued the trip to Chillicothe would have been made even if he had
no intent to hunt, and thus, the dual purpose doctrine was satisfied.

        The Industrial Commission found that when he was injured, Wilson had deviated from
his route to Iseman Mobile Homes in Chillicothe and was traveling to the property where he
planned to hunt. Further, the Industrial Commission concluded that had Wilson cancelled his
personal hunting trip, he would not have been where he was when the accident occurred.

        The Industrial Commission found that, at the time of the accident, Wilson had deviated
from his employment. Indeed, Wilson was going hunting, and at the time of the accident, he had
not reached a point where his employment could be said to have resumed. Wilson asserted
because he had not yet been hunting, there was no evidence he had abandoned the business
aspect of the trip. Francis testified Wilson telephoned him 4 times on the morning before the
accident, telling Francis he was lost and asking for directions to Francis’ farm property. Wilson
was not asking for directions to Iseman Mobile Homes in Chillicothe. Rather, he was asking for
directions so he could go hunting. There was no reason for Wilson to be on the road he was on
in connection with his business trip.

        The evidence supported the conclusion Wilson was on a significant spatial deviation from
any reasonable route to Chillicothe at the time of the accident. Wilson’s deviation was not
minor. The evidence showed Wilson intended to spend several hours hunting on Francis’
property, prior to meeting the individual at Iseman. The Industrial Commission was justified in
concluding Wilson’s multi-hour personal mission, which involved multiple features which
exposed him to the risk of injury, did not represent merely a slight deviation from his employer’s
business purposes, but a substantial deviation that defeated Wilson’s reliance on the mutual
benefit doctrine. Since Wilson did not meet his burden of establishing his injury arose out of and
in the course of employment, the court affirmed the Industrial Commission’s denial of
compensation.




                                               4
                                              H-2.5
        Whiteley v. City of Poplar Bluff, 350 S.W.3d 70 (Mo.App.S.D.2011), upheld an award
of workers’ compensation benefits, even though employee had degenerative disc problems in his
cervical spine, where there was no documentation employee had neck pain prior to the accident,
or was receiving significant treatment for his cervical spine. Whiteley started as Chief of Police
at the Poplar Bluff Police Department in June 2000 and continued to work for the City. Prior to
his employment with the City, Whiteley spent several years as a professional bull rider. On 10-
29-06, after Whiteley finished patrolling his designated area, he went to a car wash to clean his
patrol car. Whiteley was attempting to wash the inside of the windshield when he injured his
neck. He had an immediate onset of pain on the right side of the neck, and later developed
muscle spasms that caused a visible knot on that side of his neck.

        At hearing, Whiteley testified having a clean patrol car was important for the city’s
image, and for safety reasons. It was critical for police officers to see and observe things while
driving their patrol cars. Police officers with Poplar Bluff were responsible for keeping their
patrol cars as clean and uncluttered as possible. High-ranking officers with the Police
Department, including Whiteley, were assigned their own patrol cars. The officers, as part of
their assigned duties, were generally expected to wash their patrol cars and clean the windows at
the end of each shift. Whiteley testified that, depending on the weather, he normally washed his
patrol car and cleaned the windows one or more times each week.

        After the city authorized Whiteley to get medical treatment, he was diagnosed with acute
cervical strain and suspected pre-existing cervical degenerative disc disease. The physician’s
report noted multiple traumas Whiteley sustained while riding bulls. Thereafter, the city denied
Whiteley’s request for medical care. Whiteley filed a compensation claim against the city, which
included a claim against the Fund for injuries to his left upper/lower extremity and right lower
extremity. Whiteley did not miss work and made no claim for temporary total disability.

         At hearing, Whiteley testified he still had constant right neck pain in the area where the
knot on his neck was located, and had problems doing his job. During the three years preceding
his accident, Whitley indicated that, with the exception of occasional stiffness, he did not have
any neck symptoms and his neck did not bother him or affect his ability to do his job. He was
unaware of any pre-existing degenerative conditions in his cervical spine. During his bull riding
career, Whiteley had several significant injuries, including fractured ribs, a fracture to his right
tibia/fibula, an injury to his right arm, and an injury to the left shoulder. Both Whiteley’s
testimony and the medical records confirmed he did not have any injuries or significant treatment
for his cervical spine or neck before the 2006 accident.

        In July 2002, Whiteley had a claim resulting from a suspect intentionally rear-ending his
patrol car. Both the claim and settlement agreement listed back, neck and shoulder as the parts
of the body injured in the 2002 accident. The settlement agreement for the injury was based on a
disability of approximately 6% of the body as a whole, related to the back, neck and shoulder.
While Whiteley recalled signing the settlement agreement, he did not remember suffering any
injury to his neck as a result of the 2002 incident.

      After hearing, the ALJ issued an award, finding Whiteley’s cervical injuries were not
medically-causally related to the work accident, and the accident was not the prevailing factor

                                                5
                                               H-2.6
causing Whiteley’s medical condition. The ALJ denied Whiteley’s claim. Whiteley appealed,
and the Industrial Commission reversed the ALJ’s award. The Industrial Commission found the
2006 accident was the prevailing factor causing Whiteley’s cervical spine condition. It awarded
past medical expenses and permanent partial disability. The city appealed, arguing the Industrial
Commission erroneously interpreted and applied Section 287.020.3 as to the definition of
accident. Specifically, the city asserted that undisputed facts showed Whiteley was not engaged
in a work activity integral to his employment, and the Industrial Commission’s decision was not
supported by competent and substantial evidence, since it disregarded evidence of Whiteley’s
pre-existing injuries.

        The Southern District affirmed. It rejected the city’s argument that Whiteley was not
engaged in work activity integral to his employment when he was injured. Section 287.020.3(2)
provided an injury shall be deemed to arise out of and in the course of employment only if it is
reasonably apparent, upon consideration of all the circumstances, the accident was the prevailing
factor in causing the injury; and the injury did not come from a hazard or risk unrelated to the
employment, to which workers would have been equally exposed outside of and unrelated to the
employment in normal non-employment life.



        In Pile Lake Regional Health System, the Southern District found application of this
statutory provision involved a 2-step analysis. The first step was to determine whether the
hazard or risk was related or unrelated to the employment. Where the activity giving rise to the
accident and injury was integral to the performance of a worker’s job, the risk of the activity was
related to the employment. In such a case, there was a clear nexus between the work and the
injury. Where the nexus was clear, there was no need to consider whether the worker would
have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk
was unrelated to the employment did the second step of the analysis apply. In that event, it was
necessary to determine whether the employee was equally exposed to the hazard or risk in
normal, non-employment life.

        Therein, Whiteley offered extensive evidence, showing the activity of keeping the
windshield of his patrol car clean was an integral part of his job as a police officer for the city.
Thus, there was a clear nexus between the job of being a police officer and keeping patrol cars
clean. The city offered no evidence to refute Whiteley’s testimony regarding the nexus between
his job, and the activity of cleaning his patrol car, that led to his injury. Because the work nexus
was clear, the court did not consider whether Whiteley would have been equally exposed to the
risk in normal non-employment life. Thus, the Industrial Commission did not err in concluding
Whitely sustained an injury by accident because the facts demonstrated Whiteley was engaged in
work integral to his employment when he was injured.

       The court rejected the city’s argument that there was uncontroverted evidence of
Whiteley’s pre-existing, symptomatic cervical degenerative disc disease before the accident. A
review of the medical records showed Whiteley’s cervical spine was asymptomatic prior to the
accident. The medical records contained no documentation Whiteley had neck pain prior to the
accident, and he had no treatment for neck pain before the accident. Thus, the evidence did not

                                                6
                                               H-2.7
                                                                                                             5/5/2012




            2012 YEAR IN REVIEW
           WORKERS’ COMPENSATION
                    Presented by Michael Moroni
                       Bloomfield, MO 63825




State ex rel. KCP&L v. Cook, 353 S.W.3d 
14 (Mo. App. WD 2011) (OD In Circuit 
                 Court)

•   Facts:   ” Gunter worked for 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, sixteen manufacturers of asbestos‐containing products, and various "John Doe" companies that 
    designed, manufactured, distributed, supplied, used, or handled asbestos or asbestos‐containing 
    products to which he was allegedly exposed. In his first amended 

•   petition, Gunter alleged that he was exposed to asbestos during the course of his employment for 
    KCP & L and that this asbestos exposure directly and proximately caused him to develop 
    mesothelioma. He asserted 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. “




                                                H-3.1
                                                                                                                   1
                                                                                  5/5/2012




                         KCP&L Cont.
• “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.[fn2]
•    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 this Court.[fn3] We issued 
  a preliminary writ on January 28, 2011, and set the case for 
  full briefing and argument.”




                         KCP&L Cont.
• Holding: “our reading of § 287.120's plain and unambiguous language 
  leaves the other provisions of the statute fully operative. 
•    Ultimately, however, the issue here is not whether repeat‐exposure 
  occupational disease claims are compensable through the workers' 
  compensation system. Gunter is not seeking to pursue a workers' 
  compensation remedy for his occupational disease‐related claims. Instead, 
  he is seeking to pursue a judicial remedy. We need only decide whether 
  his common‐law claims are precluded by § 287.120, which they plainly are 
  not.
•    Conclusion
•    KCP & L has conceded that Gunter's claims do not arise from an 
  "accident," yet the exclusive‐remedy provisions on which it relies to deny 
  him his common‐law rights are plainly and unambiguously limited to injury 
  or death "by accident." The circuit court did not err in denying KCP & L's 
  motion for summary judgment. Because KCP & L has failed to establish a 
  right to a writ of prohibition, the preliminary writ we previously issued is 
  quashed.”




                                   H-3.2
                                                                                        2
                                                                                                            5/5/2012




    Lewis v. Gilmore (WD 72629 4/12/11)
     (Can sue uninsured employer in Tort 
         even if Statutory employer) 
• Facts:  Wrongful death suit by wife and daughter of 
  killed employee in truck accident.  Employer did not 
  have WC insurance. However, contracted to DOT 
  Transportation that did have wc insurance. 
• Recovered against Dot Transporatation in W.C. Also 
  sued ER for Unsafe workplace.  ER sought Summary 
  Judgment in Circuit court arguing that Plaintiff’s had 
  elected remedies when they filed WC against MoDot. 
  CC granted summary judgment. 




                               Gilmore Cont.
•   Held: .” By not complying with the workers' compensation law, Freeman subjected himself to being 
    sued in a civil case. As previously noted, section 287.280.1 gave the Lewises the right to pursue 
    such action. The workers' compensation award and the civil action are not inconsistent remedies 
    because they are against two separate employers. Nothing in the Workers' Compensation Act 
    prohibits an employee or his dependents from recovering workers' compensation from one 
    employer and tort damages from another employer who failed to secure workers' compensation 
    insurances for its employees. In fact, the plain language of 
•   Page 7
•   section 287.280.1 allows it. In so ruling, we do not suggest that the Lewises would be entitled to 
    keep both the workers' compensation award from DOT Transportation and any damages recovered 
    from Freeman in the civil action for the same injury. Such double recovery is an evil to be avoided. 
    See Maryland Cas. Co. v. Gen. Elec. Co., 418 S.W.2d 115, 117 (Mo. banc 1967). Any recovery by the 
    Lewises in the civil action would be subject to the subrogation rights of DOT Transportation; 
    therefore, no double recovery would be had for the same injury. 
•      The circuit court erred as a matter of law in concluding that the Lewises had made an election of 
    remedies when they obtained a workers' compensation award against DOT Transportation and that 
    the Lewises were not entitled to maintain a civil action against Freeman. We, therefore, reverse the 
    circuit court's grant of summary judgment as to Freeman and remand for further proceedings.”




                                               H-3.3
                                                                                                                  3
                                                                                   5/5/2012




      Cooper v. Chrysler, (ED96549 
    12/13/11) (Stay Proceedings until 
   Commission determines “accident”

• Slip and fall case. ER disputed accident under 
  comp. EE then files in CC. CC enters SJ for ER 
  holding that WD is exclusive remedy. 
• The Court of Appeals holds that the it is 
  proper to stay the proceedings until the 
  Commission has determined whether there 
  was an accident under the law.




                        Cooper Cont.
• “The trial court plainly erred in entering summary judgment as a remedy 
  to enforce the workers' compensation exclusivity defense when that 
  defense was based on a fact question to be decided by the Commission.
•   Conclusion
•   The judgment of the trial court is reversed and the cause is remanded 
  for entry of a stay of proceedings consistent with this opinion.
•   Kenneth M. Romines, J.
•    CONCURRING OPINION
•   I agree completely with the analysis and result reached by Judge Crane. I 
  write only to note that this is the inevitable result of the narrowing of the 
  definition of "accidental injury" by the Legislature. The required result of 
  such "narrowing" can be seen in the manner in which we recently applied 
  this Legislative dictate in Johme v. St. John's Mercy Healthcare, ED96467 
  (Mo. App. E.D. 2011).
•   Clearly the Legislature prefers jury trials."




                                    H-3.4
                                                                                         4
                                                          5/5/2012




 Tillotson v. St. Joseph Medical Center, 347 
 S.W.3d 511 (Mo.App. WD 2011) (You buy 
    the accident you buy the treatment)
• FACTS:  “Tillotson is a registered nurse. In January 
  2006, she was employed by St. Joseph's Medical 
  Center ("Employer"). On January 7, 2006, 
  Tillotson was helping another nurse move a 
  patient who was lying in bed when the bed began 
  to roll causing Tillotson to lose her balance. 
  Tillotson bounced off the wall, striking her right 
  knee against a chair. Tillotson may also have 
  twisted her knee.” 




                Tillotson Cont.
• ER admitted accident and that the EE tore a 
  menicus. Disputes that the total knee 
  replacement should be covered.  The ALJ and 
  Commission agreed with ER.  
• ALJ and Commission found that the “arthritis 
  present at the time of her accident was the 
  prevailing factor in causing her total knee 
  replacement.”




                        H-3.5
                                                                5
                                                                                5/5/2012




                      Tillotson Cont.
• The dispositive issue was framed by the court of appeals as  ”The 
  Commission denied Tillotson workers' compensation benefits because 
  it found that Tillotson's accident was not the prevailing factor in 
  requiring Tillotson to undergo a total knee replacement. Since all of 
  the compensation sought by Tillotson was related to, or flowed from, 
  the total knee replacement, the Commission concluded no 
  compensation was due. Tillotson argues the Commission committed 
  error because section 287.140.1 guarantees an injured worker the 
  right to medical treatment reasonably necessary to cure and relieve 
  the effects of a compensable injury and does not require a finding that 
  a work place accident was the prevailing factor in causing the need for 
  particular medical treatment. The Employer argues that we must read 
  section 287.140.1 to include the requirement that a compensable 
  injury is the prevailing factor in requiring particular medical treatment. 
  We agree with Tillotson and disagree with the Employer.”




                      Tillotson Cont.
• “The central question in this case is, therefore, 
  whether the Commission erroneously 
  interpreted and applied the law when it 
  denied Tillotson compensation because her 
  conceded compensable injury was not the 
  "prevailing factor" in requiring a total knee 
  replacement.”




                                   H-3.6
                                                                                      6
                                                                                            5/5/2012




                          Tillotson Cont.
•    THE ANALYSIS: ”Here, the Commission found that Tillotson "sustained a 
    compensable accident that arose out of the scope of her employment." 
    Specifically, the Commission found that the "January 7, 2006 accident was the 
    prevailing factor in causing [Tillotson's] acute lateral meniscus injury." Thus, the 
    first determination required by section 287.120.1‐whether a compensable injury 
    has occurred — is not at issue in this case.
•      Once a compensable injury is found, the inquiry turns to the calculation of 
    compensation or benefits to be awarded. The compensation or benefits which can 
    be awarded an injured employee include medical treatment (section 287.140), 
    temporary total disability (section 287.170), and permanent 
•   partial or permanent total disability (section 287.190 and section 287.200). Each of 
    these statutes presumes, by express reference, that an "injury" has occurred; i.e., 
    that the initial determination required under section 287.120.1 has already been 
    made. Stated differently, each of these statutes presumes that the "prevailing 
    factor" test described in section 287.020.3(1) has already been applied to permit 
    the conclusion that a compensable injury has occurred. “




                   TILLOTSON LESSONS
• Does it really mean if you buy the accident 
  you buy all the treatment that flows from the 
  accident?    Yes but you have to prove it.

• Consider the following non‐reported case.




                                        H-3.7
                                                                                                  7
THE LAW FIRM OF

NEALE & NEWMAN                                            ®
                                                               L.L.P.              Legal Services Since 1903
 JERRY L. REDFERN
 J. RICHARD OWENSBY
                                 ONE CORPORATE CENTRE, SUITE 1-130                             BEN M. NEALE (1876-1966)
                                                                                         CHARLES F. NEWMAN (1880-1968)
 PAUL G. WHITE                          1949 EAST SUNSHINE                              JEAN PAUL BRADSHAW (19061970)
 RICHARD L. SCHNAKE
 KEVIN HAYS DUNAWAY
                                      POST OFFICE BOX 10327                              FLAVIUS B. FREEMAN (1911-1995)
                                                                                          PAUL L. BRADSHAW (1930–1986)
 BRIAN K. ASBERRY                SPRINGFIELD, MISSOURI 65808-0327
 MICHAEL J. DeARMON*                                                                                           RETIRED:
 DWAYNE A. FULK                                                                                            THOM G. FIELD
 DANIEL K. WOOTEN°
 MARK L. McQUEARY                                                                                          OF COUNSEL:
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ONE CORPORATE
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 AMANDA M. DUMEY                   WRITER’S EMAIL ADDRESS: PPLATTER@NNLAW.COM
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 MELISSA E. BADE




                                    The Missouri Bar


                                 Annual Law Update


                        Workers’ Compensation –Printed Section


                                 Springfield, Missouri
                                   June 22nd, 2012


                                          Patrick J. Platter
                                    Neale & Newman, L.L.P.
                                One Corporate Centre, Suite 130
                                1949 E. Sunshine, PO Box 10327
                                  Springfield, MO 65806-0327
                                   Telephone: (417) 882-9090
                                   Facsimile: (417) 882-2529
                                   Email: pplatter@nnlaw.com




                                                     H-4.1
                                  Preface

                Individual cases deserve individual attention.
                 These materials are strictly educational and
                  should not be considered as legal advice.

               Opinions which do not have a citation to the
             Southwestern Reporter are still pending motions
               for rehearing or applications for transfer and
          should not be considered to yet have precedential value.

       The summaries of the cases attempt to paraphrase the opinions.
       They are no substitute, however, for reading the opinion itself.

    This outline intends to address cases that concern substantive issues.
        It is not intended to chronicle each and every opinion decided
by an appellate court that concerns the Missouri Workers' Compensation Law
    in the past twelve months. Cases that only concerned issues such as
   defective applications for review, defective points relied on in appellate
                         briefing, etc., are not included.

  Several cases cited in this outline were pending, post opinion motions or
       were on transfer to the Missouri Supreme Court at the time this
  outline was submitted for publication. That deadline was May 1st, 2012.




                                   H-4.2
                                               Outline


Subject

A.   Exclusive Remedy

      1.    Employers Liable in Tort for Occupational Diseases. State ex rel KCP&L Greater
            Missouri Operations Co. v. Cook, 353 S.W.3d 14 (Mo.App. W.D. 2011)
      2.    Election of Remedy, Lewis v. Gilmore. 2011 W.L. 1363977 (Mo.App. W.D. 2011)
      3.    Stay of Litigation, Cooper v. Chrysler Group. 2011 W.L. 6181921 (Mo.App. E.D. 2011)
      4.    Exclusive Remedy is an Affirmative Defense. Heirein v. Flowers, 343 S.W.3d 699
            (Mo.App. S.D. 2011)

B.   Jurisdiction/Employment

      1.    Owner Operator Exemption. Rader v. Werner Enterprises, Inc., 2012 W.L. 70566
            (Mo.App. E.D. 2012)

C.   Arising Out of and in the Course of Employment

      1.    Comfort Doctrine. Johme v. St. John’s Mercy Health Care, 2011 W.L. 505630 (Mo.App.
            E.D. 2011)
      2.    Dual Purpose and Mutual Benefit Doctrines. Wilson v. Wilson, 2012 W.L. 89562
            (Mo.App. W.D. 2012)
      3.    Injury While Golfing. Beine v. County of St. Charles, 353 S.W.3d 704 (Mo.App. E.D.
            2011)
      4.    Violation of Occupational Disease Act. Moreland v. Eagle Picher Technologies, LLC,
            2011 W.L. 928211 (Mo.App. S.D. 2012)

D.    Medical Causation

      1.    Interpretation of Prevailing Factor Test. Tillotson v. St. Joseph Medical Center, 347
            S.W.3rd 511 (Mo.App. S.D. 2011)
      2.    Exposure to Risks Outside Employment. Whiteley v. City of Poplar Bluff, 350 S.W.3d,
            70 (Mo.App. S.D. 2011)
      3.    Standard of Review. Pruett v. Federal Mogul Corp., 2012 W.L. 1410257 (MO.App. S.D.
            2012)

E.    Procedure

      1.    Surveillance. State ex rel Feltz v. Bob Sight Ford, Inc., 341 S.W.3d 863 (Mo.App. W.D.
            2011)


                                                   i




                                                H-4.3
     2.     Standard of Review for Expert Testimony. Elmore v. Missouri State Treasurer, 345
            S.W. 3d 361 (Mo.App. S.D. 2011)
     3.     Relation Back to Claim for Compensation. Goad v. Treasurer, 2011 W.L. 5838699
            (Mo.App. W.D. 2011)
     4.     Structured Settlements. Roth v. J.J. Brouk, 356 S.W.3d 786 (Mo.App. E.D. 2011)
     5.     No Right for Veteran’s Administration to Intervene in a Workers’ Compensation
            Claim. United States Department of Veterans Affairs v. Boresi, 2012 W.L. 925125
            (Mo.App. E.D. 2012)

F.   Benefits

     1.     The Issue of Sedentary Employment in a Permanent Total Disability Claim. Carkeek v.
            Treasurer, 352 S.W.3d 604 (Mo.App. W.D. 2011)
     2.     Violation of Scaffolding Act and Penalties. Hornbeck v. Spectra Painting, Inc., 2011
            W.L. 3897856 (Mo.App. E.D. 2011)
     3.     Benefit Reduction for Violation of Safety Rules or Failure to Use Safety Devices.
            Thompson v. ICI American Holding, 347 S.W. 3d 624 (Mo.App. W.D. 2011)
     4.     Violation of the Occupational Disease Act. Moreland v. Eagle Picher Technologies,
            LLC., 2011 WL 928211 (Mo. App. S.D. 2012)

G.   Second Injury Fund

     1.     Odd Lot Doctrine. Molder v. Second Injury Fund, 342 S.W.3d 406 (Mo.App. W.D.2011)
     2.     Schoemehl Benefits. Gervich v. Condaire, Inc., 2011 W.L. 794996 (Mo.App. E.D. 2011)

H.   Miscellaneous

     1.     Temporary Employee as Defined in CGL Policy. Mendenhall v. Property and Casualty
            Ins. Co. of Harford, 2011 W.L. 6181470 (Mo.App. W.D. 2011)
     2.     Ambiguous Work Related Injury Exclusion in Health Insurance Policy. Bodziony v.
            Blue Cross Blue Shield of Kansas City, 3332 S.W.3d 900 (Mo.App. W.D. 2011)




                                                 ii




                                               H-4.4

				
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