By Ray McCarty, president and CEO, Associated Industries of Missouri
April 10, 2024 - Representative Cyndi Buchheit-Courtway, Representative Dean Van Schoiack and Representative Michael Burton have all filed bills in the current legislative session to address an outrageous argument made by the Missouri Department of Transportation (MoDOT) that the unborn child of a MoDOT employee killed on the job was an "employee" for purposes of the Missouri Workers' Compensation Law. While we do not disagree with the purpose behind the bills they filed, one of the bills would make numerous changes that could impact all employers that are subject to the Missouri Workers' Compensation law.
Details
According to court documents, Kaitlyn Anderson, an employee of MoDOT, was struck and killed November 18, 2021, while on the job performing intersection striping on Telegraph Road near the entrance ramp of I-255 in St. Louis County. At the time, she was six months pregnant with a son, Jaxx Jarvis, who also died as a result of the accident.
Ms. Anderson's mother, Tonya Musskopf, and Ms. Anderson's boyfriend and father of the unborn child, Austin Jarvis, sued MoDOT for the unborn baby's wrongful death. In response, MoDOT claimed neither party had standing to bring the suit and further argued that the Workers' Compensation law provided the exclusive remedy for the accident for both Kaitlyn Anderson and her unborn son, Jaxx Jarvis, meaning a civil lawsuit for wrongful death could not be brought against the agency.
Legislators respond
Rep. Van Schoiack, a Republican, and Rep. Burton, a Democrat, filed identical bills, HB 2578 and HB 2484 respectively, simply saying an unborn child may not be considered an "employee" of any business or any state agency. Associated Industries of Missouri (AIM) did not oppose either of these bills.
Rep. Buchheit-Courtway's bill, HB 1531, included a prohibition against applying the exclusivity provisions of the Workers' Compensation law in any lawsuit involving the death of an unborn child, but also included many other modifications to the Workers' Compensation laws that would affect all Missouri employers that are subject to that law. Associated Industries of Missouri opposed this bill, noting the bill should be narrowly constructed to address only the absurd claim that an unborn child was an "employee" as in the other two bills. The Association does not oppose that narrower language addressing only the "unborn child" issue.
Why it matters
The Missouri Workers' Compensation law requires payments for medical treatment for workers that are injured on the job, the goal of which is to allow the workers to return to work as soon as possible without the employee having to sue the employer. If an employee dies as a result of the work accident, a death benefit is payable and subsequent payments may be due to dependents of the deceased worker.
But if the worker dies with no dependents, only the death benefit is paid. This makes sense because the purpose of the Workers' Compensation law is to compensate the worker, and those dependent on the income of the worker, for the absence of income caused by a work accident. The amount of the death benefit is set by statute. If successful in claiming the unborn child was a MoDOT employee in this case, neither the mother, Kaitlyn Anderson, nor the unborn child, Jaxx Jarvis, had dependents and only the death benefit would be payable.
MoDOT Director Patrick McKenna denies the agency claimed the unborn child was an "employee" but court records show otherwise
On March 27, 2024, MoDOT Director Patrick McKenna appeared before the Missouri House Transportation Infrastructure Committee. He was asked by Rep. Jim Murphy about MoDOT's claim that an unborn child should be treated as an "employee" for workers' compensation purposes when the mother is injured or killed on the job. McKenna testified MoDOT had not made such a claim. "That is false," he said. Upon further questioning by Rep. Murphy and Rep. Van Schoiack, he repeatedly denied MoDOT had made that argument. See the video of his testimony HERE.
In fact, court documents filed by lawyers representing the Missouri Department of Transportation show MoDOT did indeed make this claim - at least twice in two separate legal documents filed with the courts approximately 10 months apart.
On November 14, 2022, Theresa Otto, attorney with Baty Otto Coronado Scheer PC, representing the Missouri Highways and Transportation Commission as outside counsel; Jay Smith, Assistant Chief Counsel for the Missouri Department of Transportation; and Rich Tiemeyer, Chief Counsel of the Missouri Department of Transportation; filed a document with the St. Louis County Circuit Court entitled, "DEFENDANT MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION’S MOTION FOR JUDGMENT ON THE PLEADINGS" - click HERE to view the entire document.
On page 10 of that document filed by MoDOT attorneys and outside counsel is this statement:
"Secondly, assuming arguendo, Musskopf could satisfy the class requirements of RSMo. § 537.080 and join Plaintiff Jarvis in bringing Count I for the death of Jaxx Jarvis, the Plaintiffs’ exclusive remedy for compensation for the alleged wrongful death of Jaxx Jarvis is under the Workers’ Compensation Law." (emphasis added)
Later on the same page of the same document appears this statement from MoDOT:
"We need only examine the Act’s clear statutory definition of 'employee.' Jaxx Jarvis falls within the definition of employee under § 287.020(1). The Act provides that the word 'employee' as used in its many parts shall be construed to mean, when the employee dies, as the result of a workplace accident, to include within its definition the employee’s dependents. Moreover, related statutes further clarify the statutory definition and intent that Jaxx Jarvis, according to current Missouri statute, shall be included within the classification of an 'employee' under RSMo. § 287.120 because Jaxx Jarvis is a “dependent” of Anderson." (emphasis added)
Judge Joseph Dueker rejected that argument as he ruled on that motion in an order dated March 29, 2023, as follows - click HERE to view the entire document:
"Moreover, under Missouri law, Jaxx Jarvis has independent claims for his injuries and death in his own right, so Austin Jarvis’ claim for his wrongful death is not subject to Missouri’s exclusive remedy for compensation under § 287.120. See MO. REV. STAT. § 1.205 (2017). Indeed, MHTC’s statutory interpretation of the Workers’ Compensation Law to exclude Jaxx Jarvis’ claims here would lead to an extremely absurd result. See Reichert v. Bd. of Educ. of St. Louis, 217 S.W.3d 301, 305 (Mo. Banc 2007). To be sure, when reading the Workers’ Compensation Law in the context of § 1.205, Jaxx Jarvis’ independent claims as an unborn child are just as strong as if he was outside his mother’s womb and next to her at the time of his death from the accident. Therefore, the Court denies MHTC’s Motion for Judgment on the Pleadings as to Austin Jarvis’ claim in Count I."
Six months after Judge Dueker's rejection of the argument that the unborn child, Jaxx Jarvis, was an employee of MoDOT covered under the exclusive remedy provisions of the Workers' Compensation law, the same lawyers representing MoDOT repeated the argument in a document entitled, "MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION’S ANSWER TO DEFENDANT THE ESTATE OF STANLEY W. McFADDEN’S CROSSCLAIM" - click HERE to view the entire document.
On pages 9 and 10, MoDOT argues:
"If decedent Jaxx Jarvis perished as alleged in the Petition, by virtue of § RSMo. §287.020(1) Jaxx Jarvis was, by definition, an “employee” of the Missouri Department of Transportation, and thus, under Missouri’s worker’s compensation laws, Defendant The Estate of Stanley W. McFadden is barred from recovery against MHTC in a civil lawsuit by the exclusivity provisions of Missouri’s workers’ compensation laws, including RSMo. § 287.120 for the same reasons as those claims are barred as to the death of Kaitlyn Anderson." (emphasis added)
What happens next?
The Missouri legislature is in session until May 17, 2024. Currently, HB 2484 (Burton) has not been referred to committee yet and is likely not going to move as a standalone bill this session. HB 1531 (Buchheit-Courtway), the broadest bill, was heard by the House Insurance Policy Committee on March 6 and received no further action. However, HB 2578 (Van Schoiack) has been passed by the House General Laws Committee and the House Rules - Legislative Oversight Committee and is awaiting placement on a House calendar for debate. This means HB 2578 may be debated and passed to the Senate or the provisions may be added to another bill in the final weeks of the legislative session.
We will keep you posted of the progress of these bills.