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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 email@example.com
"September 16_ 2011 TO ALL INTERESTED COMPANIES Re "