OPINION AND ORDER
RUSSELL E. SMITH, Chief Judge.
The question, submitted upon an agreed statement, is whether by reason of workmen's compensation and occupational disease coverage plaintiff may maintain this action.
Plaintiff James Dayton (Dayton) seeks damages for injuries sustained by him as a result of his exposure to electromagnetic pulses and laser radiations while employed by the defendant. His wife, Gwen Dayton, seeks damages for loss of consortium.
Dayton was employed in Montana from 1968 to October 18, 1971, and in Missouri from about October 18, 1971, to June 16, 1972. The major part of the exposure took place in Montana. The defendant was covered under the workmen's compensation laws and occupational disease laws of both Montana and Missouri and defends this action on the ground that Dayton's remedies are under those laws and are exclusive.
It is unnecessary to decide whether what happened to Dayton could be deemed to be an industrial accident in the absence of an occupational disease law. The Montana legislature obviously endeavored to distinguish between accidents and occupational diseases, and Dayton does suffer from an industrial disease as distinguished from an accident.
It is Dayton's position that, since he was only partially disabled, no compensation was payable to him under R.C.M.1947 § 92-1322
The disease suffered by the plaintiff here is clearly covered by the Workmen's Compensation Law of Missouri. V.A.M.S. § 287.067-1.
There is no suggestion in the language of § 287.067-3 that its purpose is to limit the kinds of radiation diseases which are compensable, and it would be difficult to find any purpose in covering one kind of radiation disability and not another. § 287.063-5 provides that in the case of "radiation disability" as distinguished from other disabilities liability falls on the last employer only if the employee had been employed by him a period of 90 days or more. The purpose of § 287.067-3 is simply to make meaningful the term "radiation disability" as used in § 287.063-5.
It is likewise urged that, since no benefits are paid for partial disability under the Missouri law, the provisions of § 287.120-2:
do not apply. Dayton misapprehends the Missouri law. Occupational disease coverage was added to the Missouri Workmen's Compensation Law by amendment and became an integral part of it. While some ambiguities were created by the failure of the legislature to accommodate the language of the then existing compensation law to the new occupational
In any event, Dayton's argument founders on § 287.120-2, which bars the common-law remedy. See Marie v. Standard Steel Works, supra; King v. Monsanto Chemical Co., 256 F.2d 812 (8th Cir. 1958).
It is therefore ordered that the plaintiffs be denied all relief.
Let judgment be entered accordingly.
"92-1331. Rights of suit at common law. There shall be no common-law right of action for damage from occupational disease against an employer who elects to come under the provisions of this act, excepting for those employees not eligible for compensation under the terms of this act, or who reject coverage of this act."