Wednesday, December 19, 2012

Editorial: Managing the sexual assault case

The court of appeals recently increased benefits nearly $60,000 to a 27-year old woman who states a co-worker raped her at work. T.H. v. Sonic Drive In of High Ridge, 2012 Mo App Lexis 1585 (December 18, 2012); 2012 Mo WCLR Lexis 102.

The court of appeals awarded benefits based on the maximum compensation rate because the employer did not file an answer on time. The ALJ awarded the maximum rate, but the Commission found claimant failed in her burden of proof on the issue of wages when  she could not remember or offer any evidence such as her hourly wage in the weeks preceding the accident, W2s, time sheets, or check stubs, and ultimately agreed, on cross-examination, that she had no evidence at all as to what she earned while she was working for employer.   What is not clearly identified in the appellate decision is that the disability benefits were never based on claimant’s actual wages and that claimant’s wages may have been lower which otherwise would have resulted in a lower award.  What is also not identified in either decision is that many practitioners allege “maximum” rate as boilerplate pleading, when such pleading may have no reasonable basis.

The takeaway from the case is that procedural lapses such as the failure to dispute rate on a timely basis results in higher exposure to an employer. The case will be an open invitation for claimants to deliberately over-state wages on initial claims to exploit any procedural lapses by the carriers. The case provides opportunities for defense to warn clients of onerous dangers of proceeding without legal representation.

The case is a paradigm of issues involving sexual assaults on the job.

Sexual assaults are not frequently reported in appellate decisions involving work place injuries. This fact may under-represent their occurrence in the work force and the need for training to adjust such cases.  Jones v Washington University, 2005 MOWCLR Lexis 165, involved an older dialysis patient who groped his nurse. The employer’s witnesses in that cases testified that some patients behave “at their worst” and such conduct was not “unusual.”  Some injured workers may not proceed for the same reasons many crime victims never report such  incidents.

Sexual assault  is a  risk for any employer operating in Missouri. Anyone concerned with managing risk needs a protocol to reduce the likelihood of such incidents, how to investigate claims when they occur, and to reduce damages. Any sexual assault case involves unique issues and may require different handling than a typical worker’s compensation  claim.

The risk of assault may arise from internal or external sources. Common security precautions may reduce the risk of external sexual assaults. See Virginia D. v Madesco Investment Corp., 648 S.W.3d 881 (Mo. 1983). Such precautions such as adding brighter lights or locks are less effective in Sonic when the perpetrator is the co-worker. In P.M. v Metromedia Steakhouses, 931 S.W.2d 846 (Mo. App. 1996) the worker was raped in a hotel room by an executive. In Everard v Goodwin Bros., 2000 Mo WCLR Lexis 10, the supervisor was verbally and physically abusive. In Swierk v Fusion Support Services, 2010 MO WCLR Lexis 30, an independent contractor  at the employer's facility  groped the employee.

One solution is to adopt and enforce policies against discrimination and sexual harassment.  Many larger employers may already have such programs.  There is no indication in the award whether Sonic had such a program.   Farragher defenses do not preclude or reduce liability in a no-fault context of worker’s compensation as in employment cases.   The Commission has wide discretion regarding the amount of benefits it can award. The hypothetical employer who has no policy to train  its workers and then asserts a claimant 'crying rape' is lying should not anticipate a favorable award. 

Any risk assessment must consider whether any employees or supervisors are likely to represent a danger to others based on past and current conduct.  The manager who becomes aware than an current employee has a history of past sex cries or is a registered sexual predator must consider what jobs may be appropriate or what level of higher supervision may be required. In Sonic, the perpetrator had committed "numerous" sexual felonies less than a year before the attack  and plead guilty after the accident. There is no indication that Sonic knowingly hired a sexual felon at the time.  Sonic disputed the admission of the criminal history of the rapist. The court concluded claimant proved the rape by her own testimony and the criminal history was irrelevant.

As part of its investigation, an employer should file appropriate legal documents on a timely basis to preserve any defenses.  Prompt investigation is important in any case but is crucial in these types of cases. Sonic made several initial procedural lapses and did not file a report of injury, did not file a timely answer, and did not refer claimant to a carrier or a medical doctor.  The employer offered no evidence regarding wages to rebut claimant's allegations.   Sonic obtained a forensic exam to evaluate claimant’s alleged mental injuries and alleged pre-existing conditions.  The rapist was deposed.  It is not clear who conducted the deposition, but the employer objected to the deposition in evidence. 

 A claim of sexual assault may include significant damages of psychiatric and  physical injuries and medical treatment.  In Sonic the award was for 45% permanent partial disability which is an amount more typically seen with major joint replacements and failed back fusions.  Sexual assault of an injured worker  who already has a tenuous psychiatric condition may represent higher exposure for disability and life-time medical benefits.  Reasonable settlement opportunities should be vigorously explored by both parties not only to facilitate recovery of the injured worker but to stop exposure from cascading.   The Sonic case dragged on through two appeals and nearly 6 years of litigation since the 2006 assault. 

The claimant in Sonic alleged psychiatric injuries resulting in PTSD with panic attacks and chronic major depressive disorder.  Do the symptoms make sense?  Is the period of treatment appropriate?   Sexual assault cases demand close monitoring whether any damages exceed predictive models and whether the damages logically flow from the accident.  A more empathic approach to claims handling in these situations may affect outcomes.   The administrative law judge found claimant's symptoms credible.

Risk management is not limited merely to exposure for physical or mental injuries regarding the employee but has broader implications to the entire company.  Violent crime is not a way to protect workers, to keep employees, to attract customers or to expand community good will.  The entire reputation of the company is at risk regarding safety of its employees and how it responds to claim. The handling of the case, too, is critical to avoid loss of corporate good will from viral news. For example, Accident Fund Insurance denied paying medical bills under an Act of God defense to Missouri employee Mark Lindquist who sustained catastrophic injuries during a Joplin tornado.   Its name was dragged through the mud in editorials throughout the country.  The carrier waived the defense and agreed to pay the bills.

In this case, Sonic asserted various defenses:  claimant was not raped but the act was consensual (‘she asked for it’), she didn’t have physical injuries (‘she wasn’t really hurt’) and she had pre-existing psychiatric conditions (‘she was already crazy’). This is the proverbial hat trick of political incorrectness in a case in which  the court of appeals, the commission and administrative law judge found claimant was raped.   Although such  defenses fundamentally assert that claimant failed to establish her burden of proof,  they inevitably evoke insensitivity in a state that became notorious not long ago around the world for political comments defining  “legitimate" rape.  An employer should consider the risk of such arguments to their branding and corporate reputation.


In an Illinois case, Dennis v Pace Suburban Bus Services, 2014 IL App (1st) 132397 (September 5, 2014), an employer asserted it was not liable to a bus passenger because its driver who took her home and sexually assaulted her because the driver  was not acting in the scope of his employment and the employer was not responsible what he did at home.  The court reversed a motion to dismiss on tort liability for respondeat superior.  The court noted that sexual assaults are "generally" outside the scope of employment but noted the plaintiff established a duty owed because the defendant was a common carrier.  It was  jury question whether the driver breached the duty by driving her past her stop, not seeking assistance, and directing her in an impaired state back to his apartment to engage in a string of conduct leading up the sexual assault.  The court dismissed a negligence supervision count that plaintiff  failed to assert facts that the employer could have discovered some facts to identify "deviant" tendencies of its employee.