Friday, April 18, 2014

Word of the day: dignity.

It is not a novel concept:  don’t kick people when they're down. 

In a new Missouri Supreme Court case the court made it easier to sue employers for wrongful discharge.  The claimant came back to work after a serious injury and the court describes in great detail the contentious relationship and use of obscenities.  Templemire v W&M Welding, Inc., No. SC 93132 (Mo. 4-15-2014); 2014 MO Lexis 111.  It is a horn book example from the defense standpoint of bad facts making bad law
Templemire is not the first, nor by any means the worst, example of perceptions of employers behaving badly.  Using obscenities may not be truly outrageous conduct in the world of welding.   It may be a fairly common practice in some work environments, and comp should not be a ‘swear jar’ to compensate people for what  blue hairs at the symphony might consider offensive. Templemire was accommodated and given an opportunity to return to work. A close look at the case clearly demonstrates why a supervisor might be easily frustrated by claimant’s behavior. 

 Burke v L&J Food and Liquor Inc., 945 S.W.2d 662 (Mo App. 1997); 1997 Mo App. Lexis 962, is perhaps much more an extreme example.  A claimant was not taking care of  customers but was in the back room doing drugs. He wasn’t even doing it on his normal break time like Templemiere.  The company owners were displeased by the conduct, and beat him senseless allegedly causing permanent brain damage.
In fact, Templemire’s supervisor  looks like a boss of the year compared to Everhard v  Goodwin Bros., 2000 Mo WCLR Lexis 10, in which claimant alleged a nervous breakdown after years of abuse in which claimant alleges his employer threatened to kill him, rape his wife and kill his children with a hatchet.

In a comp system that does not allow punitive damages for behaving badly there is still a lot of discretion for pay back if there is a perception of kicking people when they are down.    

For example, in the recent case Davis v Mo Baptist Medical Center, 2014 Mo WCLR Lexis 42 (March 28, 2014), the employer asked the claimant to participate in an investigation for alleged threatening to bring a gun to work and going postal.  She was cleared after a few hours and found to not represent a threat.   The Commission makes a point, though, to note it cares: “we do not wish to minimize the indignity that employee suffered.”  The Commission did not award benefits, but hinted strongly to look outside the comp system.  There are few words that maybe the employer did exactly the right thing.

Again, in Patterson v Central Freight Lines, 2014 MO WCLR Lexis 51 (April 11, 2014), the Commission criticized a vocational expert for “trivializ(ing) the daily embarrassment and indignity employee suffers …”   That is what makes Patterson much more striking than Davis.  It is not just an aspirational goal to make everyone play nice together at work; it imposes a rule of etiquette among experts.   It is wrong to even suggest a claim might be bogus without facing a judicial rebuke.  Pearson v Henry Wrecker Service, 2012 Mo WCLR Lexis 208 (December 10, 2012)('don’t call me bogus').   Patterson, supra, underscores the same notion that it was wrong to suggest claimant was telling a whopper because medical histories are inconsistent. “We are not persuaded that we need the assistance of Dr. Cantrell in determining whether employee credibly reported the timing or onset of his symptoms…”   
Federal employment practitioners learned a long time ago the folly of trying to enforce rules of etiquette with every perceived indiscretion.  These recent comp opinions collectively suggest  a perception that players in the comp system must behave perfectly because everyone is forced to play in a limited compensation system in which  the employer has unequal bargaining power to direct medical care. It is a strange notion indeed to pretend forensic experts on both sides are not advocates, or that fault only exists with one side, or that sometimes in the real world people bring guns to work and very bad things can happen.   Sometimes  employers must take prompt  actions to protect other workers  even though someone might find the action undignified in a perfect world.  

Wednesday, April 16, 2014

Noxious chicken house fumes renders claimant unemployable

Claimant was diagnosed with  reactive airway disease after building and repairing chicken houses for Tyson Foods.  As a result, the Commission found he was unemployable in the open labor market.  Graham v Latco Contractors, 2014 Mo WCLR Lexis 52 (April 11, 2014).

Claimant ultimately identified specific chemicals when he sued Tyson.  He states he had to sell his family home, move away from Sikeston to the country in Piedmont where he could build a safe house where he was not exposed to chickens or any other noxious triggers.  He stated he was told his condition was irreversible and he should enjoy his time left.  Claimant's spouse testified to the deleterious affects after her husband's employment regarding his anger management, his weight control and his dental hygiene.  She noted he used to be good looking when she married him.   The voluminous award identifies a prior service connected disability for PTSD, among other conditions. 

The ALJ found the employer entitled to the full subrogration interest in the third party $750,000 settlement and the employer did not currently owe any accrued benefits of more than $200,000.  The ALJ allowed a full credit against the entire settlement  as there was no apportionment in the settlement check for the spouse's loss of consortium claim. 

ALJ:  Robbins
Atty: Rau, Petraborg

Commission reverses denial of incontinence care

The Commission reversed a denial of benefits and awarded life time benefits to a convicted felon with limited education who had "numerous and amorphous" symptoms  following a discectomy and reported poor bladder control made him psychiatrically disabled from leaving his home.  Patterson v Central Freight Lines, 2014 MO WCLR Lexis 51 (April 11, 2014).

The employer paid more than $100,000 for a back surgery after claimant fell cleaning up a truck but then contested causation noting that claimant had a history of previous treatment for its back.  A urologist indicated claimant's  symptoms were unrelated to trauma and a psychiatric expert concluded they flowed from prior psychiatric conditions.  Claimant contends after his accident his life was ruined, he doesn't go in public because of embarrassment of poor urinary control, and that he suffers from PTSD.

The Commission found claimant credible, awarded 45% and open medical for the 45 year old male, and expanded a future medical award to include the urological disorder which the ALJ did not find related.  The commission faulted the employer's vocational expert for 'trivializing the indignities claimant suffers' and the employer's experts for highlighting inconsistencies in claimant's medical hsitories:   "we feel capable of determining employee's credibility without [their] assistance."  The Commission noted no reasonable alternative explanation for claimant's neurogenic bladder:  "Dr. Cantrell does not provide any alternative medical theory to explain why a 40-year-old employee developed a neurogenic bladder following the work injury, but rather has, in essence, appointed himself arbiter of employee's credibility."  The only consolation for the employer is the commission rejected the PTSD claim and affirmed a denial of open psychiatric care for someone who confines himself to a wheelchair.

Claimant was injured in 2008 and has not worked since his employer closed its business later the same year.  Claimant injured his back when he fell while trying to clean up a truck.  He reported complaints of erectile dysfunction and incontinence.  He underwent a back surgery.  Claimant alleged medications after the surgery made him depressed, changed his personality, and altered his life.  A back surgeon advised against a revision surgery. Dr. Bassett treated claimant and concluded he had developed psychotic episodes and was unable to work with the public.  Claimant reports he is confined to his home  and became paranoid around public due to incontinence issues. 

The Commission reported it affirmed an award of 45% PPD but reversed a denial of SIF benefits.    The award finds no synergy to support a Fund award.  The  ALJ award reads in parts  more like  a draft:   "Seems to argue he is ptd b/c of psych. Why has he not  sought treatment, Psychiatric records indicate mych of his discussions and problems surrounded his relationship with his wife...."

Alj  Hart
Atty:  Fikes, Schultz, Daugherty
Tx:  Cantrell, Raskas, Adkins,  Graham
Experts:  Dr. Shands, Dr. Peeples, England, Liss, Stillings, Hammond

Mo. Supreme Court eases burden of proof for retaliatory discharge claims

The Supreme Court reversed 16 years of precedent on a worker’s burden of proof to establish retaliatory discrimination after exercising his rights under the Missouri Worker’s Compensation Act.  A worker no longer has to show that discrimination was an exclusive factor in a termination but only has to show that the employer’s motivation was discriminatory in any way.   Templemire v W&M Welding, Inc., No. SC 93132 (Mo. 4-15-2014); 2014 MO Lexis 111.

 Claimant injured his foot in 2006 resulting in permanent restrictions.  The employer accommodated claimant with a new job which it had not done with other employees.  The relationship with his supervisor was contentious as claimant obtained new permanent restrictions.  When claimant refused to perform a task and insisted he was still on his break, the employer fired him for insubordination.

Claimant attempted to establish that the employer’s motivation for discharging him was discriminatory.  The employer reportedly complained to claimant and others about his foot injury, that he belittled other workers, that he discharged workers after comp injuries, and that the discharge in this case was inconsistent with the employer’s own progressive discipline policy.

Section 287.780 was amended in 1973 and provides a private cause of action:   “No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.”

The Supreme Court for 16 years indicated the worker had the burden of proof to show discrimination was an exclusive factor for a discharge.  The Supreme Court reversed its earlier opinions and concluded for the first time and it finds“plain language” intent to impose a lower evidentiary burden based on the phrase “in any way” using strict construction.

Judge Draper noted that legislature after 1973 expanded various causes of action for employment discrimination that demonstrated a general legislative intent to broaden and not narrow access to the courts to “remedy the evil” of ‘illegal, insidious and reprehensible” acts by an employer.   The decision discusses the lower standard is consistent with the burden of proof under the MHRA and with the MAI. If the legislature didn’t like the decision they could invoke their legislative intent and abrogate it (which wouldn’t be the first time). 

A dissent argued that the majority abandoned stare decisis and adopts a new statutory interpretation of an identical statute that the court had already considered and rejected twice.  The statutory language never provided and still does not provide a causation standard.  The dissent argued that the General Assembly repealed 35 sections so the Missouri worker’s compensation law in 2005 and did not disturb the earlier case law that required exclusive intent. 

The case has huge implications for employers who take or threaten any tangible employment actions against workers with open cases.  Although the Act has never guaranteed employment simply because someone has a claim, §287.780 now raise the calculus for settling cases when the claimant has not returned to the same job for any reason. The case clearly makes summary judgment harder to resolve such discrimination  claims.  At a minimum, the case is a warning to avoid the politically incorrect “damn the torpedoes” approach of human resource management in the case in which the worker introduced evidence that his supervisor cursed and belittled him  and baited him to sue him because that’s “what he pays his premiums for….”

Thursday, April 10, 2014

No psych claim for worker investigated for threats of mayhem

An employer investigated a hospital technician for alleged threats that she would like to bring a gun and shoot everyone at work and was mad enough at times to do it herself.   Davis v Mo Baptist Medical Center, 2014 Mo WCLR Lexis 42 (March 28, 2014).  The Commission affirmed a denial of benefits related to the Feb. 2008 incident because she failed to prove stress from a risk assessment was a compensable injury arising from a work hazard. 

The employer’s emergency room examined claimant and concluded she was not a threat to herself or others and that someone possibly overheard conversations about a mass shooting and jumped to conclusions.  She was referred to an EAP program.  Claimant states she was upset, humiliated, experienced stroke-like symptoms and never returned to work.  She blamed the encounter for her depression, insomnia, alopecia and weight gain.  The Commission affirmed and found that claimant established that she had undergone “indignities” of being confined in an emergency room for a psychiatric evaluation but that the exam occurred in the context of a patient-physician encounter and not from a risk associated with her employment.  The Commission concluded that the claimant was credible when she denied ever making any threatening statements. 

“Although these allegedly injurious acts occurred on employer's premises and were performed by employer's agents, we are of the opinion that these circumstances are not dispositive of the issue whether said acts constitute hazards or risks related to the employment. This is because employer's allegedly injurious conduct took place in the context of a medical evaluation of a possible medical condition not shown to be work-related. The relationship of the parties at the time of alleged injury was one of patient and healthcare provider, not employee and employer.”

Claimant failed to prove an injury arising out of her employment or the absence of good faith required in a stress claim. The administrative law judge concluded that claimant’s expert was less credible that she had a major depressive and anxiety disorder from a “strip search and imprisonment” during her  risk assessment or that “dark forces” were at work.   

ALJ Boresi
Atty:  Gauthier, Schaller
Experts:  Stillings, Jarvis



Wednesday, April 9, 2014

Court rejects rehashed standing argument

An employer once again attempted to withdraw a settlement proposal for a lump sum of a permanent total award when a claimant with an unrelated  stage 4 cancer died while the contract was awaiting approval.  In its second visit to the court of appeals on this case, the employer once again failed to persuade the court that it could walk away from the deal.  Nance v Maxon Electric, WD 76587 (April 8, 2014), 2014 Mo App. Lexis 400. 

The employer argued the surviving spouse lacked standing to enforce the agreement because the commission had not formally ordered the widow to be substituted as a party after a motion had been filed to substitute parties.  The court noted the same argument was raised  for the first time in oral argument in the first appeal and had also been rejected in post-opinion motions in the first appeal.  The law of the case precluded re-examination of the issue.  The employer failed to preserve its belated argument that claimant was not a "party."  The employer failed to preserve any point to reject the proposed settlement based on the limited criteria of 287.390:   undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement.   The court rejected a request for sanctions against the employer. 

The not so unusual facts of Nance highlight the importance to reflect the intent of the parties how to handle contingencies in the event of unexpected death  when dealing with a party with  a known life-threatening illness.  This case has been in litigation on appeals since claimant died in October 2011 when the settlement for $181,434 was submitted by both parties.   The case flowed from a 1989 accident in which the employer had repeatedly sought approval to reduce to a lump sum.
Maxon I, WD 74942 (Nov. 6, 2012). 

Atty:  Murphy, Reynolds

Wednesday, April 2, 2014

No unemployment benefits and social security checks in the same mailbox

 What’s wrong with someone trying to get unemployment benefits at least until social security disability kicks in?  Plenty, according to the court of appeals. 

In Mottaz v Division of Employment Security, 2014 MO App. Lexis 346, a 50 year old certified nurse’s assistant worked for 2 months for a nursing home and then after she was fired for misconduct applied for and received disability benefits from social security alleging that her knees were bad, her back hurt she couldn’t lift or possibly be expected to work full time as a C N A.
The Division determined she had been overpaid unemployment benefits. The appeals tribunal concluded claimant committed fraud by claiming she could work to receive unemployment benefits and claiming she could not work to receive social security disability benefits and was not credible that she was available and capable of working when she collected unemployment benefits.   If claimant is unable to work due to a disability, the Commission could find claimant disqualified from unemployment benefits. 

 The determining issue is whether a party intentionally misrepresented ability, availability and willingness to work full time.  On one occasion, Claimant told Employer that she was declining the work because she believed accepting the work would adversely affect her receipt of unemployment benefits. On another occasion, Claimant told Employer that she was declining the work because her attorney had advised her” to limit her earnings.