The meaning of \S 287.020 .10$ RSMo has been the subject of much debate. That subsection provides:
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 the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.
In the majority of decisions applying the Law, as amended in 2005, the administrative law judge has offered a theory on the legislature's intention in enacting the subsection. In the instant case, the administrative law judge theorized as follows:
During the 2005 legislative session, the legislature expressed its displeasure with what it perceived to be the expansion of the Act to such an extent that the focus on determining whether a case was compensable seemed to be whether the act was "incidental" to the employment, a doctrine that some refer to as "positional risk", rather than whether the employee was actually engaged in performing the duties of employment.
By abrogating Bennett, Kasl, and Drewes, the legislature indicated in order for a case to be compensable under the Act it would require something more than simply being at the work place at the time of the incident. Award p. 7.
The legislature did not state that it was abrogating the holdings in Bennett, Kasl, and Drewes for any specific purpose, such as to reject the positional risk doctrine. I will assume that the legislature was capable of saying the doctrine was rejected if that was the legislature's intent.
Each of the named abrogated cases addressed more than one legal issue. The legislature did not identify any particular holding or doctrine it intended to reject Bennett, Kasl, and Drewes. Many practitioners and administrative law judges attempting to discern the meaning of the abrogation of Bennett, Kasl, and Drewes, including the administrative law judge and employer's counsel in the instant case, seemingly have concluded that the abrogation was designed to specifically reinstate the unusual occurrence (slip, trip or abnormal strain) requirement for accidents which was disapproved by the Supreme Court in Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. 1983). This conclusion is flawed.
First, it is illogical to conclude that the legislature specifically named Bennett, Kasl, and Drewes, to eliminate
a holding from Wolfgeher. It simply would have named Wolfgeher. Second, the legislature eliminated all cases interpreting "accident." Among the abrogated cases is the line of cases establishing the unusual occurrence requirement in the first place, culminating in State ex rel. Hussmann-Ligonier Co. v. Hughes, 153 S.W.2d 40 (Mo. 1941). There is no more reason to assume the legislature intended to reinstate the pre-Wolfgeher requirement of an unusual occurrence to prove accident than there is to assume the legislature intended to reinstate the pre-Hussman position that no unusual occurrence is required to prove accident. We simply do not know what the legislature intended by specifically naming Bennett, Kasl, and Drewes and the administrative law judge erred when he concluded he knows.
In reality, the specific abrogation of Bennett, Kasl, and Drewes is much ado about nothing. Each of the phrases mentioned in $\S 287.020 .10$ was significantly changed by the 2005 amendments to the Law. The legislature's act of amending the definitions automatically rendered the old definitions inapplicable prospectively. Even in the absence of abrogation, the abrogated cases interpreting the old definitions would be of little value in applying the new definitions.