June 04, 2012 10:02 AM
Q. Why is this subject important to my business?
For over seventy years, employers were only liable for occupational diseases suffered by employees through workers' compensation. This meant that insurers, or self-insured workers' compensation programs, provided full insurance coverage for medical treatment and disability benefits under the Missouri Workers' Compensation Law, regardless of the amount. This was full coverage and employers paid nothing other than their premiums for their insurance policies or self-insured workers' compensation programs.
That is no longer merely the case. Now, employees who suffer occupational diseases may sue employers for occupational diseases that arise out of and in the course of employment, provided that the employer submits the employee to working in a negligently unsafe workplace.
Q. How did this happen?
The Missouri Court of Appeals — Western District ruled that employers are subject to lawsuits, and therefore no longer entitled to immunity under the Missouri Workers' Compensation Law, in State ex rel. KCP&L Greater Missouri Operations Co. v. Cook, 353 S.W.3d 14 (Mo.App. W.D. 2011). The Court held that the 2005 amendments to the Missouri Workers' Compensation Law removed the immunity that employers previously had from lawsuits for occupational diseases suffered by employees.
Q. What is an occupational disease?
An occupational disease is any identifiable disease or medical condition that happens arising out of and in the course of employment (because of and during the job). Occupational diseases arise from general working conditions, and not by single events such as an accident, an identifiable event or assault. Examples of occupational diseases include damage to bodily organs such as the lungs, heart and kidneys; repetitive trauma such as carpal tunnel syndrome and rotator cuff injuries; mental illness; heart attacks; and degenerative medical problems in which the work environment is the prevailing factor in prompting the degenerative condition.
Q. What timeframe should I be worried about?
The general statute of limitations for bringing a personal injury action applies. That is five (5) years from the time that the medical condition becomes capable of being known. An occupational disease may not be capable of being known until the employee has a reasonable basis to believe that a condition exists and has suffered some type of damage, such as incurring medical expense, undergoing medical treatment or losing wages from work. Importantly, it should be remembered that many occupational diseases that concern respiratory or skin exposures and which damage bodily organs may have a long latency period. For example, an employee may not have been exposed to a dangerous work environment since 1995, but the disease arose in 2010. The statute of limitations would not conceivably expire until 2015 in this example.
Q. Is anything being done about this?
The Missouri General Assembly considered legislation that would have reinstituted the immunity for employers during this past legislative session. The General Assembly declined to pass this proposed legislation that was being negotiated with the governor. Those in industry who did not endorse this proposed legislation, or who were at least not enthusiastic about it, believed that the benefit afforded employees in this proposed legislation did not make it economically advantageous to employers. This, however, misses an important point. Employers are now still potentially liable for damages in excess of potential insurance coverage and punitive damages since no immunity is in place and the General Assembly will not review this subject until the 2013 legislative session.
Q. What should I do?
There are two basic steps that employers should take when addressing this subject. First, manage the risk. Second, maximize possible insurance coverage.
Examples that employers can take to manage the risk include the following:
Examples that employers can take to maximize insurance coverage include the following: