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Republicans eager to tackle workers' compensation

Thursday, December 27, 2012 | 1:50 p.m. CST

JEFFERSON CITY — Nearly two dozen years after Monroe Gunter retired from a long career at a Missouri power company, he was diagnosed with a rare form of cancer often caused by exposure to asbestos.

Gunter sued his former employer, claiming its negligence subjected him to asbestos particles that eventually led to his illness. He died before a jury ruled against him. Yet Gunter's lawsuit is cited by business groups as an example of how Missouri's workers' compensation system has gone awry and is again in need of reform in order to improve the state's economy.

When the General Assembly convenes Jan. 9, Republicans plan to use their new supermajorities to try to prohibit lawsuits such as the one Gunter filed. Their goal is to force claims for occupational diseases to go through the workers' compensation system, an administrative proceeding through which the maximum amount of money awarded to harmed workers could be significantly less than the damages a successful jury verdict might bring.

A similar bill was vetoed this past year by Democratic Gov. Jay Nixon. He said at the time that it would be wrong to eliminate the right to sue for workers who suffer from deadly work-related diseases, such as mesothelioma, the disease that killed Gunter.

The Missouri Chamber of Commerce and Industry, however, contends that Missouri now is the only state in which the workers' compensation system is not the exclusive means of resolving claims about occupational diseases.

"If that is true, I think that's disastrous to our economic job creation model," House Speaker Tim Jones, R-Eureka, said.

Incoming Senate President Pro Tem Tom Dempsey, R-St. Charles, also has pledged that changes to the workers' compensation system will top the agenda for 2013.

Republicans have long claimed that businesses need greater protection against the uncertain costs of sometimes questionable claims about workplace injuries. In 2005, Republican Gov. Matt Blunt signed a law making it more difficult for people to win workers' compensation cases by requiring them to prove that work was the "prevailing factor" for an injury instead of merely a "substantial factor."

The 2005 law also required a strict application of its provisions instead of one "liberally construed with a view to the public welfare" as had been the case in the past. That resulted in some apparently unanticipated consequences when courts began interpreting the 2005 law.

In April 2010, St. Louis Circuit Judge Robert Dierker allowed two separate lawsuits to go forward against businesses from people seeking money for their allegedly work-related mesothelioma. Dierker cited the requirement to strictly construe the law while noting that the narrowed definition of an accident in the 2005 law meant that claims over occupational diseases no longer had to go through the workers' compensation system.

Similarly, the Western District of the Missouri Court of Appeals ruled in September 2011 that Gunter could go forward with his lawsuit against KCP&L Greater Missouri Operations Co. The appeals court said his ailment did not arise from an "accident" as defined under the 2005 law and so wasn't subject to the provision making the workers' compensation system his exclusive remedy.

Gunter died a few weeks before the appeals court decision. His lawsuit nonetheless went to trial in Cass County, but Gunter lost in May 2012, said his attorney Steven Crick. That verdict now is on appeal.

Crick said cases such as Gunter's belong in circuit court, because the workers' compensation system would have provided only minimal compensation. Mesothelioma is a quickly progressing disease, so Gunter would not have had much time to draw workers' compensation benefits before his death, Crick said. Because Gunter's wife had died previously and his two children are adults, Gunter had no dependents who could have received his workers' compensation benefits after he died, Crick added. But his heirs could have received damages through the court system.

"Mesothelioma is an awful, gruesome illness, and I would not wish that on my worst enemy," Crick said. He added: "Being able to bring a claim for such a horrendous injury — and being able to bring it in court — was a fair and just thing."

The fact that Gunter did not win his lawsuit is seldom mentioned by business lobbyists and lawmakers who cite the need to prohibit such lawsuits. They instead point to the potential for businesses to get hit with huge verdicts or the uncertainty created for companies that could rack up large legal bills defending themselves against occupational disease claims in court. When legal uncertainty exists, business owners are less likely to spend money expanding their facilities or workforce.

If the workers' compensation system is not the sole means of settling claims over occupational diseases, it "subjects Missouri employers to this question of when are they done with litigation?" said Rich AuBuchon, a lobbyist and general counsel for the Missouri Chamber of Commerce.

"That was the whole point of workers' compensation, so there wouldn't be years of litigation hanging over an employer's head, and, at the same time, the employee would have the certainty of getting a specific amount of money," AuBuchon said.


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