In Burns v Employer Health Services, Inc., 976 S.W.2d 639 (Mo.App. W.D. 1998), claimant attempted to sue treatment providers, medical case managers, and the medical management company for malpractice. The Circuit Court dismissed the action for lack of subject matter jurisdiction. The appellate court affirmed the decision and dismissed the claim. The appellate court ruled that Section 287.120 governs the determination of when an injury falls under Workers’ compensation Law, resulting in the Division of Workers’ Compensation having exclusive jurisdiction. Therefore, the workers’ compensation law is wholly substitutional in character and works to deprive an employee of her tort claim against an employer and its agents. The Court also held that the medical center was not a “third person” against whom a separate claim could be brought under Section 287.150. (The rationale here appears to be that care providers in the form of a HMO are not “physicians” and therefore technically are not third persons.”

(Comment: Again, it is the constant effort to expand what was perceived to be exclusively Workers’ compensation matters into the Civil Court arena).