Workers’ Compensation: The Co-Employee Immunity Debate in Missouri

A hotly debated issue in Missouri right now is whether an employee should be able to sue a co-worker in a personal injury lawsuit outside of the workers' compensation system for work-related injury regardless of fault. In other words, should the injured worker be able to sue in all situations - whether the co-worker acted with malice or negligence in causing the injury, or even if it was completely accidental.

The Missouri Court of Appeals said "yes" in a 2010 case, changing the previous law that had only allowed such co-worker personal injury suits when the co-worker "purposefully and dangerously" caused the injury. Accidental co-employee injury lawsuits had not been available; the only legal remedy before Robinson v. Hooker for accidental co-employee injuries had been through the work comp system.

Missouri Senate Majority Floor Leader Tom Dempsey, R-St. Charles, sponsored a bill that would change this court holding and re-establish co-employee immunity from separate lawsuits in accidental or nonnegligent workplace injuries. Dempsey's workers' compensation reform bill would still allow co-worker personal injury lawsuits if the injuring employee "engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury."

The controversy over the decision in Robinson v. Hooker grew out of the court's interpretation of the workers' compensation laws "strictly" rather than "liberally." In 2005, Missouri adopted many changes to its workers' compensation system, including a change to the standard by which the law is to be interpreted.

Historically, the law required that it be "liberally construed with a view to the public welfare." Liberal construction encouraged agencies and courts to favor expansion of benefits and eligibility rather than denial when legal questions were close.

The 2005 change ordered agencies, officials and courts to instead construe the workers' compensation law "strictly." The Robinson court viewed strict construction as a requirement that the law be interpreted quite literally according to its "plain language."

Despite historical inclusion by Missouri courts of most co-worker-inflicted injuries exclusively in the workers' compensation system, the Robinson court seemed to feel it had no choice under "strict" construction but to interpret the Workers' Compensation Act differently and allow separate personal injury lawsuits to be filed against co-workers regardless of the level of fault.

Accordingly, the court held that the defendant co-worker, Hooker, who had lost control of a power hose while street cleaning and blinded the victim, Robinson, in one eye with the high-pressure water stream while they were working together, did not fall literally under the definition of an "employer" under Missouri law. The court reasoned that since Hooker was not an employer, she could not be exempted from suit by the employer immunity provision in the workers' compensation law and Robinson could sue her outside the workers' compensation system.

Insiders in Missouri's business and insurance industries generally support the bill's proposed reinstatement of co-employee immunity for accidental injury. This support is premised upon eliminating the added expenses incurred by businesses that feel they must purchase extra insurance to cover potential individual lawsuits between injured workers.

Dramatically, the legislature passed Dempsey's bill, but Missouri Gov. Jay Nixon vetoed it. The governor in his veto letter did not mention the co-employee provision as a reason for his rejection. The state Senate overrode the veto and the House must do the same by a two-thirds majority for the provision to become law over the objection of the governor. For the change to happen this session, the House must act before this legislative session's required May 18, 2012, adjournment.

While we wait to see how this matter is resolved in the legislature, if you are involved in a work accident or injury, be sure to discuss the situation with a knowledgeable workers' compensation attorney who can help you understand your rights and remedies available under this complex and ever-evolving law.