Bob Buckley for The Examiner: An Injured Worker is Left with Little Recourse

January 24, 2022

Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley reflects on a case involving workman’s compensation and the unfortunate snowball of events an injured victim had to journey through.

The article, An Injured Worker is Left with Little Recourse, was published in the January 15 edition of The Examiner. An excerpt from the article is below.

The law can lead to some harsh consequences. An example of this happened in a case decided by the Eastern District Court of Appeals in St. Louis in 1993.

Richard Bess was a passenger in a tractor-trailer with a co-employee as the driver. A collision occurred and Bess was seriously injured. The employer only had four employees, so it was not required to have workers’ compensation insurance. Thus, the injured employee could not exercise rights as an employee under the workers’ compensation law of Missouri. The law was changed to require workers’ compensation insurance if the employer has five employees unless the employer is involved in the construction industry.

The workers’ compensation law provides for payment of medical bills as the employer and its insurer are responsible for the medical care of an employee who qualifies for benefits under the law. The employee, if covered by the workers’ compensation law, is also entitled to be paid temporary total benefits to replace lost earnings equal to two-thirds of his wages up to a maximum amount provided by the law; he is also entitled to an award for permanent disability.

Although Mr. Bess was not eligible for workers’ compensation benefits because his employer only had four employees, he then tried to sue his co-employee for negligence because his negligence allegedly caused the single-vehicle collision. If he was successful and if there was insurance coverage on the vehicle, he could seek recovery under that insurance policy for medical bills, lost income and something that the workers’ compensation law does not provide: monetary damages for pain and suffering, and for loss of enjoyment of life. A jury would ultimately determine his entitlement to monetary damages.

It gets worse. Under Missouri law, the employee driving the truck is not liable if the employee failed to do something, such as keep a careful lookout, stop at a stop sign or stoplight, or failed to obey the speed limit. A law immunizes the co-employee unless the employee purposefully caused or did an affirmative act to increase the risk of injury, but not if he failed to do something that increased the risk. In most cases, the co-employee is not liable for the injuries of the co-employee despite his negligence.

I am not finished with the bad news. Even if Mr. Bess could sue his co-employee and was successful in overcoming this immunity built into the law, he still could not recover because there was an exclusion in the insurance policy insuring the truck which excluded coverage which provided: The insurance does not apply to “bodily injury to any employee of the insured arising out of and in the course of his or her employment.”

To read the full article, visit The Examiner.