The Act’s exclusivity provision is set forth in R.S.Mo. §287.120.1, which provides that:

Every employer subject to the provisions of this chapter shall be liable,
irrespective of negligence, to furnish compensation under the provisions
of this chapter 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 any other person.

Beginning in the 1980’s, Missouri courts interpreted the Act’s exclusivity provision as a jurisdictional issue, meaning that the circuit courts lacked jurisdiction over the subject matter of the claim. Because circuit courts can only adjudicate issues over which they possess jurisdiction over the subject matter of the claim, a motion to dismiss for lack of subject matter jurisdiction may be raised at any time. That was the case in McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473 (Mo. banc 2009), where Wal-Mart filed a motion to dismiss McCracken’s negligence claim on the morning trial was set to begin. Wal-Mart alleged McCracken was its statutory employee, therefore, the court lacked subject matter jurisdiction over McCracken claim.

The circuit court agreed, finding the exclusive jurisdiction of his claim was vested in the Commission. In reversing the circuit court, the Missouri Supreme Court overruled 30+ years of case law in holding that, “to the extent that some cases have held that a court has no jurisdiction to determine a matter over which it has subject matter and personal jurisdiction, those cases have confused the concept of a circuit court’s jurisdiction — a matter determined under Missouri’s constitution — with the separate issue of the circuit court’s statutory or common law authority to grant relief in a particular case.”

The Missouri Supreme Court concluded that the exclusivity provisions of the Act must be raised as an affirmative defense to the court’s statutory to proceed with resolving the claim, and the defense will be deemed waived if not asserted. Following publication of McCracken, the Missouri Court of Appeals – Western District issued its opinion in Fortenberry v. Buck, 307 S.W.3d 676 (Mo.App.W.D. 2010), in which the court noted the requirement of raising the exclusivity provision as an affirmative defense, and found that “a defendant, seeking a pre-trial dismissal based on workers’ compensation exclusivity, must file a motion for summary judgment.” The court further noted, however, that, “[w]hen the applicability of section 287.120 appears from the face of the petition, a defendant can also properly file a motion to dismiss for failure to state a claim upon which relief can be granted, see Rule 55.27(a)(6), or for judgment on the pleading pursuant to Rule 55.27(b) if the affirmative defense appears from the petition and other pleadings.”

Several appellate opinions have followed the procedural guidelines for asserting the exclusivity provision announced in Fortenberry. See, e.g., Treaster v. Betts, 324 S.W.3d 487 (W.D.Mo. 2010); Heirien v. Flowers, 343 S.W.3d 699 (Mo.App.S.D. 2011); Cooper v. Chrysler Group, LLC, 2011 Mo.App. LEXIS 1647 (Mo.App.E.D. Dec. 13, 2011).

The court in Cooper identified another alternative to the motion to dismiss/motion for summary judgment option. In Cooper, the injured worker first filed a claim with the Commission, and while that claim was pending, filed suit in circuit court. Chrysler Group raised the exclusivity provision of the Act as an affirmative defense and moved for summary judgment, in accord with Fortenberry, arguing that “plaintiff’s exclusive remedy for damages caused by injuries arising from a slip and fall on his employer’s premises was with the Commission.” The trial court agreed.

On appeal, the appellate court reversed and remanded with directions to stay the circuit court proceedings until the Commission determined whether there had been an “accidental injury” as defined by the Act. The court reasoned that the Commission retained primary jurisdiction to determine “questions includ[ing] determinations of whether there was an accident arising out of and in the course of employment and whether an employee’s injury resulted from an accident or an intentional act.” The court concluded that, “under the primary jurisdiction doctrine, the circuit court does not have the authority to determine the question of whether there was an “accidental injury” within the definitions of the Workers’ Compensation Law.”

The court notes that prior to McCracken, the exclusivity defense was permissibly raised as a motion to dismiss for lack of subject matter jurisdiction, but that dismissal on jurisdictional grounds “did not prevent a plaintiff from refiling his common law action and litigating it on the merits if the Commission subsequently determined that the plaintiff’s injury was not compensable under the Workers’ Compensation Law.” The court reasoned that since the exclusivity defense is based on the existence of accidental injury, which is an issue of fact to be determined by the Commission, it would be inappropriate for a court to enter summary judgment on the defense before the Commission decided the question of accidental injury, “because summary judgment would bar the refiling of the lawsuit if the Commission does not find an accidental injury.” As a result, the court found summary judgment to be premature, and remanded the case back to the circuit court with instructions to stay the proceedings until the Commission determines whether there was an “accident” as defined by the Act. Both parties in Cooper filed a motion for rehearing/transfer to the Missouri Supreme Court, and both motions were denied by the appellate court on January 23, 2012.

McCracken and its progeny make clear that a defense predicated on the exclusivity provision of the Missouri Workers’ Compensation Law is no longer considered a subject matter jurisdictional defect, but rather is an affirmative defense to the circuit court’s statutory authority to proceed. The defense must therefore be timely raised or it will be deemed waived. However, in light of Cooper, it remains uncertain whether circuit courts will be inclined to stay civil actions which are filed contemporaneously with or before a claimant seeks relief in the Commission.

 By:  Christopher Zarda

In Tran v. Dave’s Electric, 2011 Mo.App.Lexis 1521, the Western District Court of Appeals ruled that an employer was liable for its employee’s negligent operation of her vehicle while driving to work.   The context of the case was a cross-over accident on an icy highway.  The Dave’s Electric employee was on her way to the office for an appointment with an auditor from the Company’s workers compensation carrier.                 

Under the “going and coming” rule, an employee is generally not considered in the course and scope of employment when driving to work.   Thus, employers are rarely held liable under respondeat superior for accidents like the one in Tran.  However, the Western District found that the “special errand” exception applied because the evidence at trial was that when the roads were bad, the Dave’s Electric employee typically worked from home.  An employee’s trip may qualify as a “special errand” when it is “…undertaken to serve the employer’s purposes, at a time and in a manner dictated by those purposes; the trip must not be a routine portion of the employee’s duties, and must subject the employee to special inconvenience, hazard, or urgency.” 

The Court’s decision in Tran clearly interprets the scope of the “special errand” exception broadly.  Missouri employees are frequently called upon to traverse icy and snowy roadways.  The decision also appears to ignore the realities of today’s workplace where employees may have some task that they are allowed to complete at home, but still have other task which they are required to complete at the Company’s place of business.   In the case of the latter tasks, it seems unfair to saddle the employer with potential liability simply because it is willing to allow its employees to complete the former tasks from the comfort of their own home.        

By: Kyle Roehler (kroehler@fwpclaw.com)

The case arises out of an employment dispute at the Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”).  Hosanna-Tabor operates a religious elementary school, where it employs both “lay” and “called” teachers.  Id. at *2.  While “lay” teachers need not even be Lutheran, id. at *2, “called” teachers carry the title “Minister of Religion, Commissioned,” because they have completed “a significant degree of religious training followed by a formal process of commissioning.”  Id. at *16.  Both types of teachers “generally performed the same duties,” including the teaching of religious subjects; however, “lay teachers were hired only when called teachers were unavailable.”  Id. at *2. 

Hosanna-Tabor employed Cheryl Perich as a “called” teacher for more than four years.  Id.at *2-3.    In the summer of 2004, Perich developed narcolepsy, resulting in her taking disability leave for the first part of the 2004-2005 school year.  Id.at *3.  On January 27, 2005, Perich notified the school principal of her intention to return to work on February 22, as authorized by her doctor.  Id.at *3.  Hosanna-Tabor responded by asking Perich to resign, concluding “that Perich was unlikely to be physically capable of returning to work that school year or the next.”  Id.at *3.  Perich refused to resign and instead showed up for work on February 22, causing a disturbance by initially refusing to leave.  Id.at *3.  Perich also informed the school principal “that she had spoken with an attorney and intended to assert her legal rights.”  Id.at *3.  Hosanna-Tabor then fired Perich, citing her “insubordination and disruptive behavior” and her “threat[] to take legal action.”  Id. at *4.

Perich followed through with her threat to take legal action.  After Perich filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), “[t]he EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit.”  Id. at *5 (referencing the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.).  Perich intervened in the action, adding a retaliation claim under the Michigan Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1602(a).  Id. at *5.  The District Court dismissed the claims on summary judgment, citing the “ministerial exception”; however, the Court of Appeals for the Sixth Circuit reversed, saying that the exception did not apply.  Id.at *5-6.  Thereafter, the U.S. Supreme Court granted certiorari.  Id. at *6.

The Court first considered whether the “ministerial exception” exists.    It noted that “the Courts of Appeals have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment, that precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.”  Id. at 13.  The Court agreed:

Requiring a church to accept or retain an unwanted minister, or punishing
a church for failing to do so, intrudes upon more than a mere employment
decision. Such action interferes with the internal governance of the church,
depriving the church of control over the selection of those who will personify
its beliefs. By imposing an unwanted minister, the state infringes the Free
Exercise Clause, which protects a religious group’s right to shape its own
faith and mission through its appointments. According the state the power to
determine which individuals will minister to the faithful also violates the
Establishment Clause, which prohibits government involvement in such
ecclesiastical decisions.

Id. at 12-13.  The Court also noted that its prior decisions “confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”  Id. at *10.  Accordingly, the Court held that a “ministerial exception” to employment discrimination laws exists.  Id. at 13.

The Court next considered whether Perich fell within the “ministerial exception.”  The unanimous Court was “reluctant . . . to adopt a rigid formula for deciding when an employee qualifies as a minister[,]” but held “that the [ministerial] exception covers Perich, given all the circumstances of her employment.”  Id.at *15-16.  In particular, the Court cited “the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church” in concluding that the ministerial exception applied.  Id.at *18.  Regarding the facts that “lay teachers at the school performed the same religious duties as Perich” and that “her religious duties consumed only 45 minutes of each working day,” the Court held that such facts are relevant to the analysis but not dispositive.  Id. at *18-19.  For these reasons, the Court reversed the decision of the Sixth Circuit, reinstating the District Court’s dismissal of Perich’s disability retaliation claims under the “ministerial exception.”  Id. at *22.

In a footnote to the opinion, the Court also settled a circuit split on the procedure for raising the “ministerial exception.”  “We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”  Id. at *20 n.4.  Thus, religious groups who are sued by an employee for employment discrimination must raise the “ministerial exception” at the earliest opportunity (typically in the Answer), or else it may be waived.

The Court’s decision in Hosanna-Tabor is both a win for religious freedom and a blow to workplace equality.  Addressing the tension between these two worthy objectives, the Court said:

The interest of society in the enforcement of employment discrimination
statutes is undoubtedly important.  But so too is the interest of religious
groups in choosing who will preach their beliefs, teach their faith, and
carry out their mission.  When a minister who has been fired sues her
church alleging that her termination was discriminatory, the First
Amendment has struck the balance for us.  The church must be free to
choose those who will guide it on its way.

Id. at *21-22.  Put another way, the First Amendment protects a religious group’s freedom to discriminate against “ministerial” employees, not just on the basis of religion, but also on the basis of race, color, national origin, sex, ancestry, age, disability, pregnancy, and other protected characteristics.  The tragedy of this decision for workplace equality is that the Court declined to clearly articulate a test for determining when the “ministerial exception” will apply.  This means uncertainty for all employees of religious groups, as well as their employers, who can only speculate about which employees of religious groups enjoy the protections of federal and state employment discrimination laws.   Unfortunately, the answer to this question must wait until the U.S. Supreme Court has another occasion to consider the “ministerial exception.” 

By: Luke R. Hertenstein

 In David v. Hett, the Kansas Supreme Court held that the economic loss doctrine should not preclude claims by homeowners seeking to recover economic damages resulting from negligently performed residential construction services.  In reaching this holding, the David Court overturned the Kansas Court of Appeals’ 2004 decision, which had previously barred such negligence claims.   

The case arose from a claim for negligent workmanship brought by the Appellants, Scott and Sherry David, who had acted as their own general contractor in the construction of their home.  In the course of this venture, the Davids hired David Hett d/b/a Hett Construction to excavate and lay the foundation for their new home.  Hett’s bid was orally accepted by the Davids and then orally modified at a later date; there was some dispute regarding the terms of the modification.  Regardless, the Davids accepted Hett’s finished work in 1998.  In 2003, the Davids’ home began experiencing unusual settling, and in 2005 the Davids sued Hett for breach of contract, negligence, fraud, fraudulent concealment, and violation of the Kansas Consumer Protection Act.  Seeking damages to bring the house into compliance with the original plans, the Davids alleged that Hett had negligently performed the contractually required work.  The sole issue on appeal was whether the economic loss doctrine barred the Davids’ negligence claims.

As noted in David, the economic loss doctrine is “a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses.”  (internal citations omitted).  The rationale for the doctrine, which arises out of product liability law, is that a manufacturer is tasked with guarding against dangerous products, but cannot be expected to protect against a product not meeting a consumer’s expectations.  The Supreme Court of the United States previously approved the practicality of the economic loss doctrine by offering the following justifications:  1) the damage to a product is substantially less than that of personal injury; 2) warranty and contract law were better positioned to handle commercial disputes; and 3) allowing negligence theories exposed the manufacturers to an unlimited number of claimants who might not have privity with the manufacturer. 

The Kansas Supreme Court previously identified situations where the law imposed a duty irrespective of the existence of a contract.  In such instances any negligence actually arises out of the breach of the actual or implied duty, rather than under the terms of a contract.  In applying this theory in the context of medical malpractice claims, the Kansas Supreme Court held that “an injury is remediable in tort if it traces back to the breach of tort duty arising independently of the terms of the contract.”  (internal citations omitted). 

The Kansas Court of Appeals had been the highest court in Kansas to consider whether the economic loss doctrine should apply in negligent home construction claims in Prendiville v. Contemporary Homes, Inc.  The Court of Appeals reasoned that the plaintiff’s claims were governed by contract and warranty, and therefore were more properly disposed under those areas of the law.  Accordingly, the court decided that any claims for negligent home construction were barred by the economic loss doctrine. 

The Kansas Supreme Court overruled Prendiville because it found that a contractor has a duty to perform their obligations in a workmanlike manner and exercise reasonable care in the course of such performance.  As a foundation for this point, the Court demonstrated that the workmanlike manner and reasonable care standards were widely recognized in Kansas case law.  The David Court found this result equitable because service contracts are not armed with the warranty protections afforded goods under the Kansas Uniform Commercial Code.  As further rationale for this holding, the Court demonstrated that the home buyer, who is typically not in the same bargaining position as the contractor, should be afforded additional protections.  Lastly, the Court felt that the application of the economic loss doctrine could potentially expose two contractors to different results of liability on the basis of when the damage was discovered. 

As it was unclear from the record whether the Davids had sufficiently plead an alleged breach of duty, the Court remanded the case for that determination. 

 By: Mike Meyer, Associate

Joe Roper and Mike Belancio filed a motion to dismiss the law suit.  In what the trial court recognized was an issue of first impression in Missouri, the Firm demonstrated that there was no duty for the defendants to protect the deceased from injuries inflicted on himself, as opposed to third parties.

The Missouri Dram Shop Act already precludes suits by the consumers of alcohol for their own self-imposed injuries after they are served alcohol.  Thus, with even greater certainty, the Firm argued there should be preclusion of law suits by the consumers of alcohol for injuries sustained based on provision of a vehicle.

Plaintiff made a pre-suit demand of $3.75 million dollars.

In 2004, Mrs. Kingman was shopping at a Dillard’s store when a high-hanging rack of clothing came loose from the wall and struck her on the right shoulder.  Mrs. Kingman reached back violently to protect her face, twisting her right shoulder in the process.  Mrs. Kingman developed pain in her shoulder and sought medical treatment, including three separate surgeries to address her shoulder injury.  Despite her extensive medical care, Mrs. Kingman’s shoulder injury persisted. 

Mrs. Kingman and her husband filed an action against Dillard’s, seeking damages for negligence and loss of consortium in Missouri state court.  The action was removed to the U.S. District Court for the Western District of Missouri.  Mrs. Kingman’s expert, Dr. Swaim, concluded that Mrs. Kingman would have shoulder pain, decreased motion and weakness indefinitely.  Additionally, testimony from three other experts established that due to Mrs. Kingman’s shoulder injury, she could no longer care for her husband, a 300-pound quadriplegic.  These experts testified Mrs. Kingman’s shoulder could not tolerate lifting, pushing, or pulling her husband.  Prior to the accident, Mrs. Kingman was the primary care-giver for her husband, assisting him with bathing and dressing, feeding, urinary and bowel care, stretching to avoid joint contractures and, importantly, hoisting and turning him to prevent bedsores.

After a nine-day bench trial, the District Court held Dillard’s liable and awarded Mrs. Kingman $186,388 in damages for her past and future medical care and disability and awarded Mr. Kingman $1,000,000 in damages to cover the cost of professional care- giver services for fifteen years – that is, until Mrs. Kingman reached the age of 62, at which point she could no longer be expected to continue moving her husband.  Dillard’s appealed both damage awards.  The damage award in favor of Mrs. Kingman was upheld, but the damage award in favor of Mr. Kingman was reversed and remanded.  The Court held that, “no Missouri court has ever allowed a spouse to recover on a consortium claim for life-long professional nursing care.  Indeed, as far as the court’s research reveals, extending the law of consortium claim to embrace such a claim would be unprecedented nationwide.  Further, our review of related Missouri case law does not foreshadow an expansion of the law of consortium…”  Id. at 10.  The Court also stated it found no Missouri authority for the proposition that a consortium award may exceed by a factor of five the damages awarded to the injured spouse.  Id. at 12-13.  In light of these findings, the $1,000,000 award in favor of Mr. Kingman was reversed and remanded.

Although this issue has not been squarely addressed by Missouri state courts, this Eight Circuit opinion indicates that Missouri state courts would likely not allow a loss of consortium award that: (a) included the cost of extended professional care-giver services; or (b) greatly exceeded the value of the injured plaintiff’s damage award.

By:   Philip V. Sumner 

 After taking the depositions of the guarantors, BancorpSouth filed its motion for summary judgment based on § 432.047.2, R.S.Mo.  Paramont responded by asserting defenses to BancorpSouth’s claims based upon certain alleged oral promises of forbearance and modifications to the terms of the Notes, which Paramont claimed negated BancorpSouth’s right to pursue the deficiency. 

 In granting BancorpSouth’s motion for summary judgment, the trial court found, “the absence of a written credit agreement setting out the terms defendants [Paramont] rely on to support their affirmative defenses and counterclaims is fatal to those affirmative defenses, as well as to their counterclaims.”  Id. at *2-3.  The trial court found by the terms of Missouri’s Commercial Credit Statute of Frauds, § 432.047, such agreements were required to be in writing in order to be effective.  Id. at *3.  Although Paramont appealed, the judgment of the trial court was affirmed. 

 In its analysis, the Eastern District of Missouri cited § 432.047.2, R.S.Mo., which provides that, “[a] debtor may not maintain an action upon a defense, regardless of legal theory in which it is based, in any way related to a credit agreement unless the credit agreement is in writing, provides for the payment of interest or other consideration, and sets forth the relevant terms and conditions.”  Id. at *4.  A “credit agreement” is defined as, “an agreement to lend or forebear repayment of money, otherwise extend credit, or to make any other financial accommodation.”  Id.  The court found there was no dispute that the agreement upon which Paramont based its affirmative defenses was a credit agreement.  The court further found that under the terms of § 432.047, in order to be enforceable, the credit agreement clearly had to be in writing, which it was not.  The court further noted that by passing § 432.047, it demonstrated the legislature’s intent to eliminate all claims and defenses relating to a credit agreement if that credit agreement is not in writing. 

 Based on this recent ruling, all commercial credit agreements must be in writing in order to be effective.  This will protect banks from claims based upon certain alleged oral promises.  It should be noted this only applies to commercial transactions.

 Submitted by:  Abbey Gentle

             Reppy was injured in a head-on vehicular collision between Winters’s vehicle and a vehicle in which Reppy was a passenger.[3]  Counsel for Reppy sent a pre-suit settlement demand for Winters’s policy limits.[4]  The demand letter did not mention indemnification nor any medical liens.[5]  Winters’s counsel then replied stating an acceptance of Reppy’s demand, but also included an indemnity provision for any type of lien.[6]  Because Winters’s counsel and insurer required Reppy’s counsel and/or Reppy to indemnify all liens, Reppy filed suit against Winters because his insurer failed to timely accept the offer by meeting Reppy’s conditions for a policy limit settlement.[7] 

             The appellate court found that Winters did not establish by clear and convincing evidence that the parties had agreed to all of the essential terms of the settlement as of the purported acceptance date or thereafter.[8]  Because Winters’s reply, “by its plain language, added to Reppy’s original offer a term requiring Reppy’s counsel to indemnify Winters, his insurer, and his attorney of any type of lien, it was not a mirror image of the original offer and was not an unequivocal acceptance.”[9]  The trial court erred in concluding that there were no material deviations in Winters’s purported acceptance.[10]  The case was remanded to the trial court for further proceedings not inconsistent with the appellate court’s ruling.[11] 

             Based on this ruling, careful consideration must be undertaken in determining how to proceed when faced with a policy limits demand that does not address the indemnification of liens.  As noted by the appellate court, there must be clear and convincing evidence that the parties agreed to all of the essential terms of the settlement.  If terms are added to the original offer as in the Reppy case, it is not a mirror image of the original offer and therefore, not an unequivocal acceptance.       

[1] NOTICE:  This Opinion is not final until expiration of the rehearing period.

[2] Id.

[3] Id.

[4] Id. at *2.

[5] Id.

[6] Id. at *3.

[7] Id. at *5.

[8] Id. at *9.

[9] Id.

[10] Id.

[11] Id.

           What has excited comment is the court’s holding that the prevailing factor standard does not apply to the need for treatment.  This is not new law.  For an injury to be compensable, the work activity must be the prevailing factor in causing the disability and resulting medical condition.  This is the only area where the prevailing factor applies.  Where there is a compensable injury, the employer must provide whatever treatment is reasonably necessary to cure and relieve of the effects of the injury. 

          In evaluating this case, it is important to remember how the issues were framed to the Court.  First, the parties agreed that a compensable injury occurred, resulting in a meniscus tear.  The employer initially paid for treatment, up until the point when total knee replacement was recommended.  The parties also agreed that a total knee replacement was reasonably necessary to relieve the claimant’s painful condition. 

          A 2008 decision by the Eastern District, Gordon v. City of Ellisville, 268 S.W.3d 454 (Mo.App. 2008), seems to have contributed to the confusion by using the phrase:  “prevailing factor in causing his need for . . . surgery.”  Id., 459.  In the Gordon case, the claimant was thought to have sustained a rotator cuff tear.  When the surgery was performed, no evidence of an acute injury was found and, therefore, no compensable injury existed.

          In Tillotson, the claimant did sustain a compensable injury, a meniscus tear to the knee.  The claimant also had preexisting arthritis of the knee.  The physicians all agreed that repairing a meniscus tear in a patient with severe arthritis would make the overall condition worse.  The only way to relieve the claimant’s pain was with a total knee replacement surgery.  The witnesses for both sides agreed that performing the total knee replacement was reasonable.  The employer refused to pay for the surgery, on the grounds that the meniscus tear was not the prevailing factor in the need for the knee replacement and the Commission agreed.

            The Western District reversed the denial of benefits, holding that, since the total knee was reasonably required to treat the meniscus injury, the employer must provide it.  “The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant,” citing to the 2006 decision in Bowers v. Highland Dairy, 188 S.W. 3d 79 (Mo.App. 2006).

            In summary, the Tillotson decision does not effect a change in the existing law, but does clarify the process for analyzing whether an employer is responsible for providing certain treatment.  1.  Was the work activity the prevailing factor in causing the injury?  If the answer to this question is in the affirmative, there is a compensable injury.  The next step is:  2.  What treatment is reasonably necessary to cure and relieve the effects of the compensable injury?

 By Anne Wickliffe

             The Kansas Supreme Court has determined the date of accident for repetitive use, micro-trauma and cumulative traumatic injuries shall be governed exclusively by the plain language contained in K.S.A. 44-508, in effect prior to the May, 2011 changes to the Workers Compensation Act.  The Court reiterated that its decisions are governed solely by the language of a statute as written.  If the statute language is plain and unambiguous, no inquiry into legislative intent or policy issues is permissible. 

      The employee saw a physician on January 4, 2006, who recommended a total knee replacement.  The last date worked was February 6, 2006, with knee surgery the following day.  While off work, Employee concluded that his knee problems could be work related.  A written claim on March 28, 2006, about 50 days after his last day worked

             The Employer argued that a “strict interpretation” of K.S.A. 44-508(d) led to an “absurd result” because the Court fixed the date of accident as the date the employee gave employer written notice of the injury.  On that date, however, the employee had not worked for over 50 days, and was home recuperating from his unauthorized surgery on this “date of accident.”   The employer argued that using the “date of written claim” for the date of accident gave the claimant an unlimited time in which initiate a claim, rendering the statutory notice time period a nullity.  The employer argued that fixing the date of accident as the last day the claimant actually worked would give effect to the statutory notice provisions, and allow the employer time to investigate the claim and authorize or deny benefits.

             The Supreme Court observed that the legislature held hearings on the Statute in 2005, and was made aware of this possible problem.  Yet the 2005 revisions to the statute were passed without adding a “last day worked” provision for the date of accident in repetitive injuries.  The court rejected the employer’s invitation to look beyond the statutory language and into the policy and/or unintended result of the omission of the “last day worked” provision. 

              The Court upheld the award of benefits, including the unauthorized knee surgery that happened before a claim was actually filed.   The Court observed:

  “So long as it remains within constitutional boundaries, the legislature has the authority to intentionally and knowingly enact statutory provisions that may lead to unreasonable results.” 

 On May 15, 2011, major changes to the Kansas Workers’ Compensation statute went into effect, adding a “last day worked” provision.  For claims occurring after May 15, 2011, the date of accident for repetitive trauma is now governed by K.S.A. 44-508(e).  The date of accident is now the earliest of:

 (1)   The date the employee, while employed for the employer against whom benefits are sought, is taken off work by a physician due to the diagnosed repetitive trauma;

 (2)   The date the employee, while employed for the employer against whom benefits are sought, is placed on modified or restricted duty by a physician due to the diagnosed repetitive trauma;

 (3)   The date the employee, while employed for the employer against whom benefits are sought, is advised by a physician that the condition is work-related; or

 (4)   The last day worked, if the employee no longer works for the employer against whom benefits are sought.

 In no case shall the date of accident be later than the last date worked.

 K.S.A. 44-508(e) (2011)

      In addition to the revision to K.S.A 44-508, K.S.A. 44-520 now imposes on an employee a strict, 30 calendar day time limit from the date of accident in which to provide notice to the employer for claims filed after May 15, 2011.  In this case, Saylor’s claim would have been barred for failure to provide notice within 30 days of his last day worked.

     Practitioners and workers compensation professionals need to be aware that “strict interpretation” of statutory provisions is alive and well in the appellate courts.  Arguments grounded in “public policy” or “legislative intent” will most likely be unsuccessful.

By:  Chris Werner