On September 13, 2011, the Court of Appeals for the Western District of Missouri issued a very rare en banc opinion on a writ of prohibition allowing the employee’s claim to go forward. The ill worker was exposed to asbestos, a known cancer causing agent, while working for KCP&L Greater Missouri Operations Company (KCP&L) from 1954 to 1988 and was diagnosed with mesothelioma in 2010. Mesothelioma is a rare, but fatal, asbestos related disease.

His claims against his employer, KCP&L, relied upon premises liability and negligence theories. The employee alleged that KCP&L had a duty to exercise “reasonable care” in preventing an “unreasonable risk of injury.” KCP&L argued that the Missouri Workers’ Compensation Act was his exclusive remedy, and sought summary judgment, which was ultimately denied by the trial court.

The Appeals Court held in its 7-2 opinion, that a strict reading of the Missouri Statutes §287.020.2 and §287.120 defeated KCP&L’s argument that the claimant’s occupational disease was covered by the Act, and that workers’ compensation was the employee’s exclusive remedy available. The Court reasoned that the 2005 amendments to the Missouri Workers’ Compensation Act required a “strict construction” of the Act.

The exposure at work was deemed not to be a specific accident, but rather a continuous occupational exposure over 34 years. The Appeals Court differentiated the occupational exposure to asbestos from a specific accident that is defined as “an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.”

The Court’s ruling opened the door for this worker and others who have been exposed in such a fashion to pursue a lawsuit against his or her employer directly, and not be constrained by the limited economic bounds of the Workers’ Compensation Act.

This change in the law came about as a result of previous aggressive actions by business and industry to modify the Missouri Workers’ Compensation Act in an to attempt to eliminate claims. The ultimate lesson to be learned is that when a pro-business Legislature deforms the law, and attempts to carve-out certain types of injuries from being compensable, they force such cases into the civil arena. Be careful what you ask for—-you just might get what you deserve.

Following the Appeals Court’s ruling, an Application for Transfer to the Missouri Supreme Court was filed by counsel for the appellant’s on 9/27/11. No ruling on the transfer request has been made by the Missouri Supreme Court.

State ex rel KCP&L Greater Missouri Operations Company v. Hon. Jacqueline Cook WD73642 2011 WL 4031146 (Mo.App. W.D.) (September 13, 2011)

This blog has been shared elsewhere, and is featured as a guest blog at http://tinyurl.com/3mmfrzk
John R. Boyd

John R. Boyd is the current President of the Workers’ Injury Law & Advocacy Group (WILG), and is the managing partner of our law firm.

That is class warfare.

Arguing over the optimum marginal tax rate for the top one percent is not.

Proponents of the 2005 law changes are responsible for this holding, which undoubtedly will expose employers to risks which did not exist before the ill advised meddling occurred.
Labor and trial lawyer organizations told them this was a likely outcome in 2005, but they were committed to cutting people out of work comp coverage, and now it appears the Court has given effect to the plain and ordinary words used.

See  State ex rel. KCP&L Greater Missouri Operations Company v. Hon. Jacqueline Cook, no. WD 73462 https://www.courts.mo.gov/file.jsp?id=49158

Approximately 4,000 individuals have filed litigation concerning GSK’s alleged misrepresentations regarding Avandia. Most of those claims have been consolidated in a multi-district proceeding that is pending in the United States District Court for the Eastern District of Pennsylvania. See In re: Avandia Marketing, Sales Practices and Products Liability Litigation, M.D.L. 1781 (E.D. Pa.).

Four public entities have sued GSK over the company’s allegedly fraudulent marketing of GSK: (1) the state of Utah, (2) the state of Louisiana, (3) the state of South Carolina, and (4) Santa Clara County, California. Missouri is contemplating filing a separate action, in order to recover large sums it paid through Medicaid coverage for its citizens.

Avandia (generic name rosiglitazone) is a type 2 diabetes drug that is taken orally and commonly combined with other diabetes treatments. Avandia is marketed by GlaxoSmithKline (“GSK”). GSK introduced Avandia in 1999. GSK is a British pharmaceutical and healthcare company. GSK’s 2009 revenue surpassed $45 billion; in 2006, sales of Avandia totaled $3.6 billion.

In May 2007 the New England Journal of Medicine published a paper authored by Dr. Steven E. Nissen, which summarized the results of his study of Avandia. According to Dr. Nissen, type 2 diabetes patients taking Avandia had an increased risk of heart attacks compared to patients taking comparable drugs, or following other treatments. Dr. Nissen’s study concluded that Avandia was associated with a 43 percent increased risk of heart attacks.

In June 2007 the Food and Drug Administration issued a “black box” warning that Avandia should not be given to patients with heart failure. In July 2007 FDA scientists estimated that Avandia was associated with approximately 83,000 excess heart attacks since the drug came onto the market in 1999.

In July 2010, an FDA advisory panel voted to keep Avandia on the market, but increase or otherwise modify the warnings on the drug’s label. A few days later, the FDA ordered GSK to halt enrollment in a large drug trial that was scheduled to commence concerning Avandia and its associated health risks.

After Dr. Nissen’s article was published in 2007, the U.S. Senate Investigation Committee on Finance commenced an investigation into GSK and Avandia.

After reviewing over 250,000 pages of documents over a four-year period, the Committee concluded that GSK “was aware of the potential cardiovascular risks associated with Avandia in late 2004 or early 2005.” The Committee also found that GSK had previously sought to intimidate and undermine researchers who previously suggested Avandia enhanced cardiovascular risks.

In summation, the Committee stated: The totality of evidence suggests that GSK was aware of the possible cardiac risks associated with Avandia years before such evidence became public.  Several years prior to Nissen’s study, it can be argued that GSK was on notice that Avandia may have problems. Based on this knowledge, GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner.

If you have taken Avandia, and have had a heart attack, you have possible legal remedies available for which you should immediately consult with an attorney.

Times are tough, everybody is in debt, and everybody is living on credit.

A rich tourist visiting the area drives through town, stops at the motel, lays a $100 bill on the desk and says he wants to inspect the rooms upstairs before selecting one for the night.

1. As soon as he walks upstairs, the motel owner grabs the bill and runs next door to pay his debt to the butcher.

2. The butcher takes the $100 and runs down the street to retire his debt to the pig farmer.

3. The pig farmer takes the $100 and heads off to pay his bill to his supplier, the Farmer’s Co-op.

4. The guy at the Farmer’s Co-op takes the $100 and runs to pay his debt to the local prostitute, who has also been facing hard times and has had to offer her “services” on credit.

5. The hooker rushes to the hotel and pays off her room bill with the hotel owner.

6. The hotel proprietor then places the $100 back on the counter so the rich traveler will not suspect anything.

At that moment the traveler comes down the stairs, states that the rooms are not satisfactory, picks up the $100 bill and leaves town.

No one produced anything. No one earned anything. However, the whole town is now out of debt and looks to the future with a lot more optimism.

And that, Ladies and Gentlemen, is how an Economic Stimulus works

Here’s a link from which you can find out more:

http://www.aflcio.org/corporatewatch/paywatch/

“First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for me
and there was no one left to speak out for me.”

Here in Missouri, it’s 2011. It’s time that you speak up, whether you are a member of a union or not. For that is because of legislation geared to destroy the ability of our friends, neighbors and family to associate and collectively seek livable wages, reasonable pensions, health insurance, and job safety and security.

If you or a member of your family work for a paycheck, then you should be aware of Senate Bill 202, “Paycheck Deception,” which has passed the Missouri Senate and is headed over to the House. It is a direct attack on the ability of firefighters and teachers, social workers and nurses to collectively bargain, and is the same sort of attack on public workers that we’ve seen in Wisconsin, Ohio and Indiana.

It seeks to deceive voters in the August 2012 primary, and because it would be on the ballot it would not be subject to a veto by Governor Nixon.

The Republican super-majority in the Missouri Senate could spend its time creating jobs that would help get hundreds of thousands of working families back on track from this devastating economy. Instead, it passes a partisan political attack that is meant to silence the voice of working Missourians. Working people and our unions create a check on corporate power, and the CEOs funding politicians don’t want anything getting in their way.

Public workers are critical to our communities and deserve to have a voice at work. If this attack is successful, it will affect all employments, not just the public workers.

Remember Pastor Niemöller’s words.

Urge your representative to OPPOSE SB202.

* (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
* (2) Everyone, without any discrimination, has the right to equal pay for equal work.
* (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
* (4) Everyone has the right to form and to join trade unions for the protection of his interests.

At the Visitors’ Center in Buchenwald, anyone viewing the site of Nazi atrocities can obtain a free copy of a document called The Universal Declaration of Human Rights.

It is incredibly ironic that in that place of all places, a colleague observed that the message is crystal clear to all but the willfully ignorant.

This can be viewed online at this link: http://www.un.org/en/documents/udhr/index.shtml#a23

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and “to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.”

I am amazed at the number of Republicans and Democrats who love to credit our founding fathers with abundant wisdom, then conveniently ignore some of the historical facts about the legislation these legendary giants implemented during our early history. This is true whether for national health care, or, for appropriate workers’ compensation insurance coverage.

In 1798, the United States Congress passed an Act for Relief of Sick and Disabled Seamen. http://www.scribd.com/doc/29099806/Act-for-the-Relief-of-Sick-DisabledSeamen-July-1798

This law required all seamen who worked in the merchant marine (private companies) to pay a special tax to fund medical care and hospitals for seamen who were sick or injured. The government deemed that merchant seamen were necessary to the economic health of America and their hard labor jobs often produced injuries that if left untreated would result in an unnecessary loss of their labor and economic hardship for our country.

Thomas Jefferson was the Senate leader and John Adams the President. I dare say both of them were very familiar with our Constitution and it’s restrictions, yet they both helped put in place this common sense law and never once considered it an affront to personal liberty.

There is very little difference between that act and compulsory health insurance other than one is a tax and the other a fine if one doesn’t comply. Both require citizens to help fund their own health care. Both have the power to create a healthier workforce and consequently a healthier economy.

Next month marks the 100th anniversary of the Triangle Shirtwaist Factory fire, which is credited with the impetus for the need for strong unions; for national workers’ compensation laws; and, for states to enact safety laws regulating the workplace.

Today’s legislators would well be served by such history lessons.

Think again.

The employer hired an ‘expert’ who looked at some genetic testing and concluded that the prevailing cause of the herniation was inherited, not hard work. Incredible, but true.