Burns v. Employer Health Services

Appeal From: Circuit Court of Jackson County, Hon. Edith L. Messina Opinion Vote: AFFIRMED. Spinden, P.J., Ulrich J. concur Opinion Judith M. Burns appeals from the judgment of the circuit court dismissing her petition for medical malpractice against Gallagher Woodsmall, Inc., Lynn Wells-Brownell, and Barbara Jones, respondents, for lack of subject matter jurisdiction, the court having determined that exclusive jurisdiction was vested in the Workers' Compensation Division (the Division) as to the alleged negligent acts of the respondents. The appellant asserts two points on appeal. In both points, she claims that the trial court erred in dismissing her petition for lack of subject matter jurisdiction because the alleged medical malpractice of the respondents did not fall within the exclusive jurisdiction of the Division in that the Workers' Compensation Law (WCL), Chapter 287, 1 did not apply. In Point I, she claims the WCL did not apply because, pursuant to section 287.120, the rights and remedies she sought with regard thereto were not provided for by the law. And, in Point II, she claims the WCL did not apply because under the law the respondents were ""third persons,"" not employers or their agents, against whom a separate tort claim could be maintained.