Top California Workers Comp Lawyers

Sue Employer for Negligence?

Work Comp — Tue, 03 Jan 2012 19:47:01 +0000

A Court of Appeals in Missouri has ruled that an employee, who became ill as a result of an occupational exposure to asbestos fiber, may sue his employer for negligence. The Court ruled that the limitations on recovery of the Workers’ Compensation Act did not bar a claim where an occupational exposure occurred.

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)

John R. Boyd is President of the Workers’ Injury Law and Advocacy Group (WILG). He is the managing partner of Boyd & Kenter, P.C., Kansas City, MO, and is licensed to practice in Missouri, the United States Court of Appeals for the Eighth Circuit; and the United States District Court for the Western District of Missouri. He is currently a member of the Missouri Bar Association, the Kansas City Metropolitan Bar Association (Chairman of the Workers’ Compensation Committee 2000-2001), the Missouri Association of Trial Attorneys (MATA), and the American Association for Justice.

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Fundamental Rules of Workers Compensation?

Work Comp — Tue, 03 Jan 2012 19:43:57 +0000

The elimination of the principle of “no fault” from the workers’ compensation system is the conclusion of study commission by Britain’s Department of Work and Pensions. The report, to be released this week, is significant because the US system was modeled after the program adopted in Europe.

Read the article, “Workers ‘should not be able to sue for accidents if it’s their fault‘ (dailymail.co.uk)

“Employees would lose the right to sue when they are are injured at work because of their own mistakes, under new health and safety reforms.”
“In a review published next week there are calls for a ‘rebalancing’ of safety laws and a dramatic reduction in the number of rules in the workplace……” read more
……

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Cell Phones a Potential Cancer Risk?

Work Comp — Tue, 03 Jan 2012 19:40:21 +0000

After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers’ compensation occupational disease claims for cancer of the brain. The increase risk has been identified for glioma, a malignant type of brain cancer .

The research has been mounting concern about the possibility of adverse health effects resulting from exposure to radio frequency electromagnetic fields, such as those emitted by wireless phones. The number of mobile phones in use is estimated at 5 billion annually. The Working Group did not quantitate the risk; however, one study of past cell phone use (up to the year 2004), showed a 40% increased risk for gliomas in the highest category of heavy users (reported average: 30 minutes per day over a 10‐year period).

The WHO/International Agency for Research on Cancer (IARC) has been meeting from May 24 through May 31 in Lyon, France to access the potential carcinogenic hazards from exposure to radio frequency electromagnetic fields.

The IARC Monograph Working Group discussed and evaluated the available literature on the following exposure categories involving radiofrequency electromagnetic fields:

occupational exposures to radar and to microwaves;
environmental exposures associated with transmission of signals for radio, television and wireless telecommunication; and
personal exposures associated with the use of wireless telephones.

A report summarizing the main conclusions of the IARC Working Group and the evaluations of the carcinogenic hazard from radiofrequency electromagnetic fields (including the use of mobile telephones) will be published in The Lancet Oncology in its July 1st issue.

Cells phones have emerged as a significant issue in workers’ compensation claims since their use has been a major cause ofdistracted driving resulting in many serious and fatal accidents on the job. The WHO/IARC report has the potential of causing a major new wave of workers’ compensation claims for cancer.

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Does Mitt Romney Plans Cut Benefits to Disabled?

Work Comp — Tue, 03 Jan 2012 19:30:23 +0000

The Mitt Romney campaign, on the eve of the Iowa Caucuses, is now refining a campaign strategy, to reduce benefits for the disabled. He is beginning to take aim at any and all programs, regardless of funding, that provide assistance to those who are unable to work.

As state workers’ compensation programs are, both substantively and procedurally, entangled into a complex web of Federal subsidies and reimbursements, he too maybe taking aim at state workers’ compensation systems.

Read: The Anti-Entitlement Strategy (NYTimes)
“Romney and his aides have designed his rhetoric to define pretty much all spending on entitlements, including provisions for the injured, unemployed, sick, disabled or elderly as benefits to the poor who, Romney implies, are undeserving. And it doesn’t matter whether the money to pay for these programs comes from employer and employee contributions and not just tax revenue — they are all under suspicion.”

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