A. Application of Exclusive Remedy of Workers' Compensation
Generally, an employer is immune from civil lawsuits for any breach of its duty to provide its employees with a reasonably safe workplace, which results in injury to or the death of an employee who was injured or killed while performing duties arising out of and in the course of the employee's employment. Kelley v. DeKalb Energy Co., 865 S.W.2d 670 (Mo. 1993).
An amendment to the Workers' Compensation Law enacted in 2005 did not grant any such rights to employees before the amendment was later repealed. Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.2d 61 (Mo. App. 2007).
Grant of immunity also applies to insurers (Am. Motorist Ins. Co. v. Ryan, 755 S.W.2d 399 (Mo. App. 1988), since the insurer is primarily liable for payment of compensation and is not a "third person" under the law. Hanson v. Norton, 103 S.W.2d 1 1937.
Circuit Court has jurisdiction to hear and decide issues sounding in negligence or tort in all civil cases even if the Workers' Compensation Law may ultimately bar a plaintiff from recovery damages. See, McCracken v. Wal-Mart Stores, 298 S.W.3d 473 (Mo. 2009). Such a defense must be granted under the standards of summary judgment. Treaster v. Bets, 324 S.W.3d 487 (Mo. App. 2010).
Damage claims for which an employer is immune include:
-Emotional and mental distress
-Economic loss as the result of termination of employment
-Claim for improper handling by a workers' compensation insurance adjuster, including claims for "bad faith." Houston v. Aetna, 701 S.W.2d 207 (Mo. App. 1985).
-Failure to pay temporary total disability. Feltz v. Ford Motor Co., 916 S.W.2d 798 (Mo. App. 1995).
-Failure to pay medical expenses. Rival Co. v. Gant, 945 S.W.2d 475 (Mo. App. 1997).
-Medical bills. Wood v. Union Elect., 786 S.W.2d 613 (Mo. App. 1990).
-Failure to refer to a proper medical specialist. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (Mo. App. 1998).
-Failure to provide easier work duty to an employee. Feltz v. Ford Motor Co., 916 S.W.2d 798 (Mo. App. 1995).
-Failure to provide medical treatment more quickly. Wiley v. Shank & Flattery, Inc., 848 S.W.2d 2 (Mo. App. 1992).
-Requiring employee to attend strenuous work hardening therapy before claimant's condition is full diagnosed. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (Mo. App. 1998).
-Exception does not include failure to warn of dangerous equipment. Risse v. APV Anderson Bros., 714 S.W.2d 922 (Mo. App. 1986).
1. Employer negligence, intentional tort, dual capacity, dual persona
Civil rights and remedies should not be taken from a claimant where the question is close unless abolished by clear terms. Porter v. Erickson Transport Corp., 851 S.W.2d 725 (Mo. App. 1993).
-Intentional acts on the part of the employer, with specific purpose of injuring its employee or with "substantial certainty" that injury will result. Speck v. Union Elect., 741 S.W.2d 280 (Mo. App. 1987); Stonebarger v. Emmerson Elect., 668 S.W.2d 187 (Mo. App. 1984).
-Civil claim for withholding information concerning employee's health is allowable. Speck v. Union Elect., 741 S.W.2d 280 (Mo. App. 1987).
-A spouse of an employee may state a cause of action for negligent infliction of emotional distress with regard to the employee's work-related injury. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462 (Mo. 2001).
Employee still maintains rights for discrimination and retaliatory discharge.
Palermo v. Tension Envelope Corp., 959 S.W.2d 825 (Mo. App. 1997).
Use of form Stipulation does not release employee's employer from liability for retaliatory discharge (Yerington v. Lazy Boy, Inc., 124 S.W.3d 517 (Mo. App. 2004).
Must employee's exercise of workers' compensation rights be the exclusive cause of the discharge? Missouri Supreme Court decision
Failure to insure.
Claimant's acceptance of compensation paid by employer in compliance with law constitutes election precluding subsequent maintenance of civil action, but only if the acceptance is knowledgeable. Ballinger v. Gascosage Elect., 788 S.W.2d 506 (Mo. 1990).
Third persons may be sued, including physicians.
James v. Poppa, 85 S.W.3d 8 (Mo. 2002).
Co-employee who has violated an independent duty to an injured employee can be held liable to the injured employee for the results of the violation. Carman v. Wieland, 406 S.W.3d 70 (Mo. App. 2013).
It is affirmative act of a co-employee directed at a particular employee which allows common law right of action (Id.).
Is Missouri's workers compensation system still sufficient? Is there a violation of constitutional rights?
2. Third Party Contribution claims and exception
Employer generally not subject to claim for contribution under Apportionment of Fault Doctrine.
Employer can be contractually responsible to a third party for negligence.
B. Statute of Limitations==RSMO 287.430
1. Failure to file first report of injury
i. Statute extended to 3 years.
1. Employer must file report within 30 days of knowledge of injury, otherwise extends to 3 years RSMo 287.380.
ii. Notice of claim filed by claimant?
2. Latent Injuries
Limitations begins to run on date that doctor told claimant not to go back to work, not date that claimant first saw doctor Sellers v TWA, 752 SW2d 413 (Mo App 1988).
3. Award or stipulation of future medical expenses
Pierce v Zurich, 441 SW3d 208(MoApp 2014), attached
Lyman v Missouri Employers Mutual, 407 SW3d 130(MoApp 2013) attached.
ISP Minerals, Inc. v Labor and Industrial Relations Commission, attached.
4. Legal Disability
Tolled for infancy Hugelman v Beltone Kansas City Hearing Service 389 SW2d 220 (Mo app 1965).
C. Employer, employee, and independent contractor status
1. Control, supervision, type of work, length of time
2. Distinct occupation or business, skill, materials and tools
3. Method of payment and taxes
4. Intent of Relationship
In determining whether an individual is an "employee" for purposes of the workers' compensation statutes, the inquiry focuses on whether the employer had the right to control the means and manner of the service, as distinguished from controlling the ultimate results of the service. State v. Turner, 952 S.W.2d 354 (Mo. App. 1997).
An individual can be considered an employee when there is evidence that the alleged employer controlled certain details of employment and employer benefited economically and functionally from having the work carried out by the alleged employee. Watkins v. Bi-State Development Agency, 924 S.W.2d 18 (Mo. App. 1996). In Watkins, the Court of Appeals considered commands as to where and when the work of the alleged employee would be performed as evidence of the "right to control." 924 S.W.2d at 21.
In Turner, two disc jockeys who worked at the employer's lounge, using the employer's equipment, qualified as employees under the "relative nature of the work test." Id. This was despite employer's testimony that the disc jockeys were not his employees, but were "merely trying to help and keep the place open." Id. at 356.
The disc jockeys were deemed to be employees even though there was no evidence that the employer had the "right to control" the manner in which the disc jockeys performed.
When it is the employer who furnishes the equipment, the inference of right of control is a matter of common sense and business. Hinton v. Bohling Van & Storage Co., 796 S.W.2d 87, 90 (Mo. App. 1990).
In Turner, the Court also looked at the "relative nature of the work test." 952 S.W.2d at 358; Watkins v. Bi-State Development Agency, 924 S.W.2d 18, 21 (Mo. App. 1996); Gaston v. JH Ware Trucking, Inc., 849 S.W.2d 70, 74 (Mo. App. 1993).
Under this test, the court considers the relationship between the work and the business, looking at the economic and functional relationship between the nature of the work and the operation of the business served. Turner found it persuasive that the nature of the work was such that if it had not been done by the injured employee, another employee of the company would have done it. Id. at 358.
D. Statutory Employer vs. actual employer: business owner, contractor/subcontractor; temporary staffing
E. Medical Examiner
Waddell on Waddell's Signs, attachment