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September 16_ 2011 TO ALL INTERESTED COMPANIES Re

VIEWS: 1 PAGES: 2

									                                                                                 10111 West 87th Street
                                                                                 P.O. Box 12290
                                                                                 Overland Park, KS 66282
                                                                                 T: 913-888-1000
                                                                                 F: 913-888-1065

                                                                                 WWW.WALLACESAUNDERS.COM

                                                                                 RICHMOND M. ENOCHS
                                                                                 JAMES G. BUTLER, JR.
                                                                                 RICHARD T. MERKER
                                                                                 ROD L. RICHARDSON
                                                                                 BARRY E. WARREN
                                                                                 MARK W. MCKINZIE
                                                                                 JAMES L. SANDERS
                                                                                 MICHAEL J. DUTTON
                                                                                 THOMAS D. BILLAM
                                                                                 GARY R. TERRILL*
                                                                                 TIMOTHY G. LUTZ
                                                                                 DOUGLAS C. HOBBS*
September 16, 2011                                                               ROBERT A. MINTZ
                                                                                 D'AMBRA M. HOWARD
                                                                                 D. STEVEN MARSH*
                                                                                 STEPHEN H. SNEAD**
                                                                                 KARL KUCKELMAN
                                                                                 JOHN M. ROSS
                                                                                 MICHAEL D. STREIT*∆
                                                                                 TIMOTHY J. FINNERTY*
                                                                                 ERIC A. VAN BEBER
                                                                                 KURT W. RATZLAFF*
                                                                                 DERRICK A. PEARCE
TO ALL INTERESTED COMPANIES                                                      CHRISTOPHER J. MCCURDY
                                                                                 NICK NAGRICH**
                                                                                 JOEL I. KRIEGER
                                                                                 DONALD J. FRITSCHIE
Re: Exclusivity in Workers Compensation                                          PATRICK J. MURPHY*
                                                                                 MARTY T. JACKSON*
                                                                                 JEFFREY S. NICHOLS
                                                                                 KEVIN D. WEAKLEY∆
Dear Friends:                                                                    MICHAEL R. KAUPHUSMAN
                                                                                 KEVIN M. JOHNSON
                                                                                 MARK E. MCFARLAND
                                                                                 MICHAEL L. BROWN
The Workers Compensation “exclusive remedy” in Missouri applies only to          PAUL M. CROKER
                                                                                 ALLISON G. CONFER
“accidents,” but not to “occupational exposures,” according to a new appeals     JONATHAN W. DAVIS
                                                                                 ALEX B. JUDD
decision of Western District Court of Appeals.                                   SCHALIE A. JOHNSON
                                                                                 RYAN D. WELTZ
                                                                                 CARA R. ROSE**
In a very short decision of Sept. 13, the full 9-member panel voted 7-2 to       NATHANIEL A. DULLE◊
                                                                                 CHERYL A. KESSLER
change decades of statutory and case law that had limited employees to           TYLER HIBLER
                                                                                 AARON SCHWARTZ**◊
Workers Compensation benefits for any on-the-job injuries. The Western           CAROL A. KRSTULIC
                                                                                 MATTHEW W. SIMS**
District, in State ex. Rel. KCP&L v. The Honorable Jacqueline Cook, Circuit      MATTHEW WENGERT
                                                                                 LAUREN MARINO
Court Judge, 17th Judicial Circuit Court, WD73462, determined that because       BRADLEY J. RAPLE
                                                                                 CHRISTINA PYLE*
of “strict construction” embodied in the 2005 amendments to the Work Comp        MARK WARE*


law, it must read the statutes as written, despite a long history and numerous   (OF COUNSEL)
interpretations to the contrary.                                                 JAMES O. SCHWINN
                                                                                 JAMES L. MOWBRAY
                                                                                 BRIAN G. BOOS

The underlying case is one brought by Monroe Gunter, a KCP&L employee
                                                                                 K.B. WALLACE (1912-1982)
for 34 years before retirement in 1988. As soon as Mr. Gunter was diagnosed      FRANK SAUNDERS, JR. (1931-2010)
                                                                                 LARRY J. AUSTIN (1929-2011)
with mesothelioma, he filed a civil lawsuit against KCP&L and other              BARTON BROWN (RETIRED)
                                                                                 WAYNE POWERS (RETIRED)
defendants, asserting they were responsible for exposing him to asbestos,        SALLY HARRIS (1945-2010)

which resulted in his illness. Other defendants either were dismissed or
                                                                                 ALL ATTORNEYS ADMITTED
settled out, leaving KCP&L as the only defendant. KCP&L then filed for           IN KANSAS AND MISSOURI
                                                                                 UNLESS OTHERWISE NOTED
summary judgment, asserting the “exclusive remedy” provisions of R.S.Mo.
                                                                                 **ADMITTED IN MISSOURI
287.120, to the effect that Mr. Gunter’s claims should be limited exclusively    * ADMITTED IN KANSAS
                                                                                 ∆ ADMITTED ALSO IN OKLAHOMA
within the Workers Compensation system. The trial judge denied summary           ◊ ADMITTED ALSO IN ILLINOIS

judgment, resulting in KCP&L filing for Writ of Prohibition in the Western
District. That appeals court issued a preliminary writ in January, but after     Kansas City, MO
                                                                                 By Appointment Only
briefing and argument, entered this order Sept. 13 quashing that preliminary     T: 816-942-8080
                                                                                 F: 913-888-1065
writ. That allows the denial of summary judgment to be final, which allows Mr.
Gunter to pursue his civil claim against his employer.                           Wichita, KS
                                                                                 T: 316-269-2100
                                                                                 F: 316-269-2479

                                                                                 Springfield, MO
                                                                                 T: 417-866-2300
                                                                                 F: 417-866-2444
September 16, 2011
Page 2


Seven of the full panel of Western District judges agreed that because the 2005 amendments
require the Work Comp law to be subject to “strict construction” rather than the previous “rule of
liberal construction,” see 287.800, that it must read the statutes narrowly. The statute providing
“exclusive remedy” within Workers Compensation system, is 287.120, in subsections 1 and 2.
Those provisions reference injury or death “by accident,” but makes no mention of “occupational
injury” or “occupational exposures.” Because the 2005 Missouri Legislature amended the
definition of “accident” under 287.020.2 in a more limited fashion to exclude occupational
exposures, but did not change any language in 287.120, the Western District decided that
Workers Compensation exclusivity applies only to injury by accident.

The majority panel recognized that numerous pre-2005 decisions had held occupational disease,
and “repetitive use” claims as subject to the exclusivity of 287.120, even though such were not
within the definition of “accident.” The panel also recognized a large number of provisions of the
Missouri Workers Compensation Act provide specifically for compensation of occupational
disease claims. “However, the existence of a workers’ compensation remedy for such claims does
not necessarily establish that the statutory remedy is exclusive.” The panel also stated: “While it
may constitute a substantial departure from prior law, there is nothing absurd or irrational in
finding that workers may prosecute civil actions to recover from their employers on occupational
disease claims, even though they may also have an available workers’ compensation remedy for
the same injury.” (Emphasis added.)

This author will withhold any editorial comments about the logic or reasonableness of this majority
decision, simply noting the underlined words are those of the panel. Whether this issue will be
addressed by the Missouri Legislature, or by the Missouri Supreme Court, is yet to be determined.



Very truly yours,

Thomas D. Billam

Thomas D. Billam
For the Firm

(913) 752-5514
tbillam@wallacesaunders.com

								
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