Jeffrey Hicks v. Missouri Department of Corrections

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 14-004926

**Employee:** Jeffrey Hicks

**Employer:** Missouri Department of Corrections

**Insurer:** Missouri Office of Administration

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. We have reviewed the evidence, read the parties' briefs, heard oral argument, and considered the whole record. Pursuant to § 286.090, RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to resolve the issues of whether employee is entitled to additional temporary total disability benefits in the amount of $26,999.12 and the nature and extent of employee's permanent partial disability, including disfigurement.

The administrative law judge determined that employee is entitled to recover temporary total disability and permanent partial disability benefits. The administrative law judge also determined that employee's actions did not constitute post-injury misconduct.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred because employee was disqualified from temporary total disability benefits pursuant to § 287.170.4, RSMo, because employee was later discharged for misconduct.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of post-injury misconduct and the award of temporary total disability benefits.

Employee was injured on January 2, 2014. On February 26, 2014, employer placed employee on a "modified" work duty. On August 26, 2014, employee received a release to return to work without restrictions from employer's workers' compensation doctor. However, employee did not return to work, but told the sergeant on duty that he would not return until his shoulder was fixed.

According to employee's testimony, he did not call in for work or return to work again. Employer records indicated that employee called in his absences sporadically from September 27, 2014 through November 23, 2014. According to his records, employee did not call in every day.

On October 7, 2014, employer sent employee a letter with instructions to return to work by October 22, 2014. On the morning of October 22, 2014, employee called in to report his absence and talked to an administrative office assistant, who informed employee about a predisciplinary hearing regarding his employment. Employee responded that he was not going to

Injury No.: 14-004926

Employee: Jeffrey Hicks

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attend the hearing, but was waiting on a doctor's appointment. The assistant informed employee that the hearing would proceed without him later that day.

On November 7, 2014, employer denied a demand from employee's attorney for a second opinion. The record does not establish when employee's attorney demanded the second opinion. On November 18, 2014, employer sent employee a letter stating that his position was being terminated effective November 25, 2014, because he violated employer's rules. One of the rules employer listed stated as follows, "employees shall contact their immediate work supervisor, control center, or other designated staff member at the worksite at least 60 minutes prior to the beginning of their work shift each day they are unable to work and need to take leave, unless other arrangements are made with the employee's supervisor." Tr., p. 517. We find that employer did not terminate employee's employment merely because of his absences, but because he failed to follow the proper procedure to report his absences.

**Conclusions of Law**

Section 287.170.4, RSMo, provides:

> If the employee is terminated from post-injury employment based upon the employee's post-injury misconduct, neither temporary total disability nor temporary partial disability benefits under this section or section 287.180 are payable. As used in this section, the phrase "post-injury misconduct" shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician.

There is no dispute that employee did not call in every day, as required by his employer. There is also no dispute that employee did not make other arrangements with his supervisor, which was another option offered by employer. We conclude that employee committed misconduct by failing to call in his absences and/or make other arrangements with his supervisor. Employee's misconduct resulted in the termination of his employment. Pursuant to § 287.170.4, RSMo, temporary total disability benefits are not payable to employee.

Furthermore, employee did not take the necessary steps to maintain his employment. For example, employee did not request additional leave without pay to cover his absences. Employee did not respond to employer's letters. Employee did not attend the pre-disciplinary hearing. Employee simply did not indicate to employer that he still wanted his job after he was released to return to work on August 26, 2014. It is not good public policy to require employer to track down every absent employee to determine the reason for an absence. Public policy requires some onus to be put on the employee to secure or maintain his/her employment.

We disagree with the administrative law judge, who determined that the exception applied in this matter regarding absences from the workplace due to an injury. Employer did not terminate employee's employment merely because of his absences, but because he failed to follow the proper procedure to report his absences. The exception in § 287.170.4, RSMo, does not apply in this matter.

**Decision**

We modify the award of the administrative law judge as to the issue of temporary total disability benefits. Employee is not entitled to temporary total disability benefits because he was terminated from his post-injury employment for post-injury misconduct.

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Injury No.: 14-004926

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued September 27, 2018 is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 3/24 day of May 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 14-004926

Employee: Jeffrey Hicks

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

At the outset, I take issue with the provisions of § 287.170.4, RSMo. I agree with the words of the late Judge Teitelman that this provision:

> [P]unishes an employee for post-injury misconduct that, by virtue of being post-injury, could not have been a factor in causing the injury. The statute does not even require that the employer's decision to terminate the injured employee is reasonable or non-pretextual. There is nothing in the previous workers' compensation statute or any principle of common law that would deny otherwise available compensation based on post-injury misconduct that has no causal relationship to the injury that necessitated compensation in the first place.

*Mo. All. for Retired Ams. v. DOL & Indus. Rels., Div. of Workers' Comp., 277 S.W.3d 670, 685-86 (Mo. 2009) (Teitelman, J., dissenting).*

Here, employer did not demonstrate that it terminated employee's employment for misconduct. The workers' compensation law does not define misconduct. The term "misconduct" is defined in the dictionary as "intentional wrongdoing: deliberate violation of a rule of law or standard of behavior." *WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1443 (Unabridged, 2002).*

Employee was not intentionally doing wrong or deliberately violating employer's rules or standards of behavior. Employee was unable to return to work due to his work related shoulder injury. Employee informed employer of his inability to return to work to full duty. As demonstrated by employer's record, employee tried to report his absences and maintain contact with employer. Employee knew that he could not return to full duty, as employer expected him to.

Furthermore, even if employer terminated employee's employment for a definition of "misconduct," then such "misconduct" was due to employee's absences from the workplace due to an injury. Therefore, the exception to § 287.170.4, RSMo, would apply in this matter. I agree with the decision of the administrative law judge on this point.

I would affirm the administrative law judge's award allowing temporary total disability. Because the Commission majority has decided otherwise, I respectfully dissent.

*Curtis E. Chick, Jr., Member*

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Hicks

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund (Open)

Insurer: Missouri Office of Administration

Hearing Date: June 27, 2018

Injury No.: 14-004926

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: January 2, 2014

1. State location where accident occurred or occupational disease was contracted: St. Francois County, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was engaging in defensive tactics training when he injured his left shoulder.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Left Shoulder

1. Nature and extent of any permanent disability: 37 ½% PPD of the Left Shoulder plus 3 weeks disfigurement

1. Compensation paid to-date for temporary disability: $1,794.72

1. Value necessary medical aid paid to date by Employer/Insurer: $75,855.44

WC-32-R1 (6-81)

Injury No.: 14-004926

Page 1

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 546.23
3. Weekly compensation rate: $\ 364.15 for both PPD and TTD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Stipulated temporary total disability: $\ 26,999.12

87 weeks of permanent partial disability from Employer: $\ 31,681.05

3 weeks of disfigurement from Employer: $\ 1,092.45

1. Second Injury Fund liability: Open

TOTAL: $\quad \ 59,772.62

1. Future requirements awarded