State Ex Rel. KCP & L Greater Missouri Operations Co. v. Cook

JAMES M. SMART, JR., Judge.

I agree with the comprehensive dissenting opinion of Judge Welsh. I write separately in dissent primarily to emphasize that much of the back-and-forth analysis as to the intent and effect of the 2005 amendments is not dispositive as to whether the preliminary writ should be made permanent. While there are different views as to the effect of the 2005 amendments, it is incorrect to believe that there is any view that warrants allowing Mr. Gunter’s case to proceed in circuit court. And that is because, pursuant to statute and judicial decision, the primary jurisdiction for any claim of workplace injury arising out of an employment relationship is in the Division of Workers’ Compensation.

Apparently, every judge participating in this writ proceeding agrees that the General Assembly did not categorically remove occupational disease claims from the scope of compensability under the Act. Accordingly, it is basic law that this case, which alleges occupational disease related to workplace employment, must first go to the Division. If, after the claim is adjudicated in the Division, the issues of the ultimate meaning and effect of the 2005 amendments remain, they may be resolved at that time (unless the General Assembly acts in the interim to clarify any confusion).

But before discussing further the exclusiveness of the authority of the Division to resolve claims of workplace injury, I must comment briefly on the notion that the General Assembly’s amendment to section 287.8001 calling for “strict construction” of the provisions of the chapter is a factor in our approach to this case. Without trying to sound cute, I suggest that we should not use undue liberality in construing the specification of a requirement of “strict construction.” That is because the clearly *47stated purpose of the 2005 amendments to Chapter 287, like the 1993 amendments, was to legislatively overrule judicial decisions that the General Assembly believed were unduly expanding the scope of com-pensability:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of “accident,” “occupational disease,” “arising out of,” and “in the course of employment”....

Section 287.020.10. And then, if that were not clear enough, the legislature went ahead to specifically overrule by name certain decisions that were illustrative of what the General Assembly regarded as the judicial tendency to expand compensability:

to include, but not be limited to, holdings in: Bennett v. Columbia Health Care, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. banc 1999); and Dreives v. TWA, 984 S.W.2d 512 (Mo. banc 1999), and all cases citing, interpreting, applying, or following those cases.

Id. And, as Judge Welsh’s dissent points out, there were other decisions, though not specifically named, that clearly came under the knife.2

What is obvious is that the General Assembly, while clearly retaining coverage for occupational disease claims, decided to restrict compensability for certain occupational diseases as well as for “accidents.” This is most evident in other amendments to the chapter, including those related to the accrual of an occupational disease for repetitive motion injury.3

If I may use a rather poor analogy, much of the confusion comes from the fact that the General Assembly, in its effort to “tidy up the garden,” was not content to take out some judicially-planted “weeds” that it regarded as noxious. The General Assembly also apparently decided to attack what it saw as the root system of the difficulty. Therefore, the General Assembly took the radical step of eliminating the concept in 287.800 of “liberal construction with a view to the public welfare.” It did this, I suggest, thinking that to do so would secure the garden against what it saw as errant judicial tendencies to conflate “public welfare” with claimant welfare. I see no other plausible explanation for the revision to section 287.800. It seems highly extraordinary for a legislative body to ask the courts to apply “strict construction” to every aspect of a massive chapter that sets up an entire agency and a complicated and extensive regulatory scheme, when that same legislature has told us in section 1.010 generally how to construe its statutes: “all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.” I am not aware of any legislative body anywhere that has ever taken a major piece of remedial and regulatory legislation, and has said, in reference to the whole thing: “Construe every provision of this entire act strictly.” I cannot buy that. The change to 287.800 was, in my view, an ill-advised oversight of a legislative body trying to engage in reform.

“In interpreting statutes, ‘our polestar is the intent of the legislature. Construction must always seek to find and further that intent.’” Garland v. Dir. of Revenue, 961 S.W.2d 824, 830 (Mo. banc 1998) (citation *48omitted). The starting point is the ordinary meaning of the words. § 1.090. When the ordinary meaning is absurd or so strained as to seem to not fit the overall legislative objectives, we resort to other rules of construction to gain the legislature’s true intent. See Elrod v. Treasurer of Mo., 138 S.W.3d 714, 716 (Mo. banc 2004); Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 592 (Mo.App.1999). The rules of statutory construction are merely aids that allow the court to ascertain the legislature’s intended result. See Edwards v. St. Louis County, 429 S.W.2d 718, 722 (Mo. banc 1968).

It is the unusual case in which we say, “The legislature did not mean the exact words that it used here.” But we have said that when we were convinced. For instance, in the case in 1999 involving the Missouri Wiretap Statute, Phillips v. American Motorist Insurance Co., the language used by the legislature in section 542.418.1, RSMo 1994, taken at face value, meant that no court could receive in evidence (in any civil or criminal case except a suit under the Wiretap Act itself) any testimony concerning any electronic communication (including a telephone call, email communication, telegram, etc.). 996 S.W.2d at 590. But in examining the overall purposes of the statute, we realized what was really intended was that no electronic communication could be received if it had been obtained by law enforcement officers as a result of an unauthorized wiretap. Id. at 593. Due to a drafting error, the statutory provision did not convey what the legislature intended, but we were not handcuffed in our interpretation by their poor drafting. Id. at 593-94. Here, also, in this case, we should not be handcuffed.

The amendment to 287.800 was not a routine revision. I believe the error was as to the scope of the command — the language extending the strict construction requirement to every provision of the chapter. I am convinced that the General Assembly never intended for the concept of “strict construction” to be applied indiscriminately to all of the provisions of Chapter 287 (including, for instance, the exclusivity language of section 287.120). Rather, it was aimed at the concepts related to compensation of claims.

The circuit court’s order denying KCP & L’s motion and allowing the case to go to trial indicates that the court believed either: (1) that claims of occupational disease are no longer included within the scope of the Act’s coverage; or (2) the legislature intended to allow an occupational disease claimant to select the forum most likely to suit the possible success of the claim asserted. Under the circuit court’s theory, if Plaintiff Gunter wishes to plead that his work exposure was not the prevailing factor in his disease, he may proceed to circuit court. On the other hand, if he wishes to plead that the work exposure was the prevailing factor, he may proceed to the Division of Workers’ Compensation. Also, I would assume that if he loses in either forum, he may then proceed to the other forum and pursue his claim there.4

One problem with the circuit court’s interpretation is that we all know that it is extremely unlikely that the legislature intended to abolish one of the primary foundational aspects of the Workers’ Compensation consensus: the requirement that the exclusively authorized route for a claim *49is in the Division of Workers’ Compensation.

Here, we have a case in which Plaintiff Gunter claims disease from exposure to asbestos that occurred in the workplace while he was working for KCP & L. This is not a case in which the existence of the employment relationship was in doubt, as it was in McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 479 (Mo. banc 2009). In McCracken, the petition did not appear to be a workers’ compensation claim. The defendant raised the issue of “statutory employment.” As to that issue, which was strictly a legal issue, based on agreed facts, the Court had jurisdiction to decide the issue just as much as the Division did. Because the case was already in the circuit court, it was entirely unnecessary to refer the matter to the Division. The Court said that the circuit court could decide, on motion for summary judgment, whether, as a legal issue as to which the facts were undisputed, a statutory employment relationship existed. Id. at 479.

In McCracken, the Court was not professing to say that if there were factual disputes about such matters as causation, extent of injury, and so on, the circuit court had authority to go ahead and resolve those issues. Rather, the Court made very clear:

[T]his does not mean that [the alleged plaintiff-employee] has an undefeatable right to have his claim determined in circuit court just because he chose to file it there in the first instance, without regard to whether ... his claim is otherwise one that Missouri statutes commit to determination by the Commission. Rather, it means that this issue should be raised as an affirmative defense to the circuit court’s statutory authority to proceed with resolving his claim.

Id. at 477 (emphasis in original).

The Court stated specifically that there are claims that the “Missouri statutes commit to determination by the Commission.” Id. When it is not clear, absent adjudication, whether there is an employer-employee relationship for purposes of the Act, the court must adjudicate whether the claim in question is one that is “committed to determination by the Commission.” Here, the pleadings make clear, absent any adjudication, that KCP & L is an employer, and that Gunter was employed by KCP & L, and he claims a work-related exposure.

In McCracken, the Court was affirming the settled doctrine that the Division of Workers’ Compensation is generally the only proper place for claims that involve an employment relationship and an allegation of a work-related injury. See also State ex rel. Consumer Adjustment Co., Inc. v. Anderson, 815 S.W.2d 84, 86 (Mo. App.1991) (“[P]laintiff cannot proceed with the underlying action [in the circuit court] until the Commission has determined that the injury did not arise out of and in the course of his employment.”).

As KCP & L points out, the Supreme Court in Killian v. J & J Installers, Inc., 802 S.W.2d 158, 160 (Mo. banc 1991), stated, “courts will not decide a controversy involving a question within the jurisdiction of an administrative tribunal until after that tribunal has rendered its decision.” Also, in Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6, 9-10 (Mo. banc 1992), the Court reiterated this understanding:

If the Commission should determine it has no jurisdiction, the matter may proceed directly to the circuit court. On the other hand, the Commission has exclusive jurisdiction in the first instance as to matters covered by the Workers’ Compensation Act, and if the Commission issues an award, judicial review proceeds directly to the appellate courts.

*50(Emphasis added.) If one does not like the term “primary jurisdiction,” one may chose to refer to this jurisdiction as “exclusive jurisdiction in the first instance.”.

In Killian, the Missouri Supreme Court expressly rejected the plaintiffs argument that the trial court could determine the issue of whether there was an “accident” within the meaning of the Act. 802 S.W.2d at 160. And the concurring opinion of the then-Chief Justice reminded us of the historic bargain which created the exclusive statutory jurisdiction of the Division. Id. at 162 (Blackmar, C.J., concurring). He stated:

The workers’ compensation statutes provide mutual benefits and burdens. In return for providing compensation which is both assured and insured, the employer is relieved of the burden of civil actions for damages. Claimants, concerned because of the modest scale of compensation benefits when compared to some civil recoveries, have often tried to get around the interdiction of civil actions by astute pleading.

Id. (Blackmar, C.J., concurring).

We should not, in Mr. Gunter’s case, be lured into undermining one of the foundations of the agreement underlying the Act. The General Assembly has the authority to set up administrative agencies and to grant them exclusive responsibility for the adjudication of certain types of claims.

The decision in Harris v. Westin Management Co. East, 230 S.W.3d 1 (Mo. banc 2007) is illustrative. In that case, the plaintiff was on his way to work as a passenger in a vehicle that was struck by a van driven by a Westin employee. The collision occurred on a public street near the Westin Hotel. The suit was filed in circuit court. The fact that the plaintiff was also an employee of Westin was not facially relevant,5 but defendant Westin, in order to try to redirect the case, raised the issue, contending that jurisdiction lay solely in the Division of Worker’s Compensation. That issue, of course, was clearly a legal issue (not even a mixed factual-legal issue) that the Court could easily resolve without referring the matter to the Division as a useless act, only to have it return again to circuit court. The concept of what is often called “primary jurisdiction” is grounded partially in practicality and partially in the concept of separation of powers. It permits a “workable allocation of business” between the courts and the agencies established by the legislature. Civil Aeronautics Bd. v. Modem Air Transp., Inc., 179 F.2d 622, 625 (2d Cir. 1950). It applies where a claim that could (originally) have been addressed in a court has, under a regulatory scheme, been placed under the special competence of an administrative body. See United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161,1 L.Ed.2d 126 (1956).

Neither McCracken nor Hams was a case involving causation, existence of injury, or extent of injury. McCracken was limited to the issue of determining whether there was an employment relationship. Hams was limited to determining whether the employee, who admittedly had not reached his place of employment yet and had not clocked in, had gotten close enough to his workplace to be considered “in the course of’ his employment. The basic facts in both cases were not in dispute. Nothing about McCracken or Harris undermines the Workers’ Compensation comprehensive “bargain” to take work-related claims (involving causation, extent of injury, and so on) against the employer out of the tort system and put *51them in the hands of the Division of Workers’ Compensation. They do not undermine the bargain referred to in as the Workers’ Compensation Act.

This case, in contrast, would accomplish such an undermining. It would allow a civil jury the initial right to decide, after hearing the conflicting medical testimony, the extent to which the exposure to asbestos at KCP & L was the efficient cause of the occupational disease of mesothelioma. It would be a ground-breaking change in the law to allow a claim that, on its face, purports to have arisen out of an employment relationship, to be heard in the first instance in circuit court. This would be an entirely new concept to the legislature— who, by the way, gets to have the last word whenever there is confusion as to what it intended.

Moreover, there are other aspects of this primary statutory jurisdiction that go beyond holding to the “agreement.” There is a certain degree of expeditiousness in the avoidance of the jury trial and the resolution of the factual medical matters by administrative law judges who are familiar with many aspects of medical testimony. We also avoid having to develop two bodies of jurisprudence, one only for the LIRC and the Division, and one for juries, who need instructions in work-related occupational diseases in the circuit courts where, as in this case, the application of the Act is contested. We also do not have to have parties being forced to strategically plead inconsistently “against themselves” in order to try to gain a footing in the initial forum of preference.

As KCP & L also points out, in the 2005 amendments themselves, the General Assembly formally codified the doctrine of the primary exclusive jurisdiction of the Division of Workers’ Compensation in those amendments by enacting section 287.801, which states:

Beginning January 1, 2006, only administrative law judges, the commission, and the appellate courts of this state shall have the power to review claims filed under this chapter.

Notably, the power of the courts to adjudicate claims filed “under the chapter” rests solely in the appellate courts of the state, along with the power of the administrative law judges and the Commission, which have the power to review (which in this context probably means “adjudicate”) claims.

Also, it should be noted that section 287.800.2 makes no reference to circuit courts adjudicating claims arising under the Act, including occupational disease claims, when it states:

Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers’ compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

All of this is further evidence that the legislature did not contemplate the circuit courts exercising original adjudicatory power over claims for occupational disease.

Plaintiff is simply mistaken when he argues that he is entitled to circumvent the primary exclusive statutory jurisdiction of the Division of Workers’ Compensation and try his workplace occupational disease case to a jury, asking the jury to decide causation issues, including the degree to which his work exposure was the prevailing factor in the development of his disease, whether the disease arose out of and in the course of his employment, and so on.

Summary

If Plaintiff Gunter were correct that the General Assembly did in fact categorically *52eliminate occupational disease from the coverage of the scope of the Workers’ Compensation Act, it would be obvious that the preliminary writ in this case should be dissolved. Of course, he is not correct in that regard, as is amply demonstrated in both the majority and dissenting opinions. And if, as even the majority agrees, the General Assembly did not eliminate occupational disease from the coverage of the Act, then it is entirely appropriate to make the writ permanent so that this matter may be initially determined in the Division. See, e.g., State ex rel. McDonnell Douglas Corp. v. Luten, 679 S.W.2d 278 (Mo. banc 1984); Consumer Adjustment Co., 815 S.W.2d at 86.

Though KCP <& L agrees that this case does not involve an “accident” within the definition of 287.020, it has not agreed that the exclusivity clause of 287.120 does not apply in this case. This is a case in which both parties agree that this is a workplace claim against Gunter’s employer. It is not a case in which both parties are content to try the case in circuit court. All such cases must first go to the Division for adjudication. For this reason, no matter how one interprets the 2005 amendments, as either the majority or as Judge Welsh’s dissent does, this case must first go to the Division. The preliminary writ should be made permanent.

. Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 2010 Cumulative Supplement, unless otherwise noted.

. See footnote 6 of Judge Welsh’s dissent.

. See, e.g., this writer's concerns about the problems created by the 2005 amendments to section 287.063.3 in Miller v. U.S. Airways Group, Inc., 316 S.W.3d 462, 469-72 (Mo. App.2010) (Smart, J., concurring).

. Of course, there would be no bar of res judicata, because the issues as to causation in the case would be very different.

. There is no indication that it even appeared from the petition that Harris worked for Wes-tin or that anyone thought that Harris had a workers’ compensation claim.