Jeffrey Hicks v. Missouri Department of Corrections

(After Mandate from the Missouri Court of Appeals for the Eastern District)

**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

On March 17, 2020, the Missouri Court of Appeals, Eastern District, issued its opinion in *Jeffrey Hicks vs. State of Missouri, Department of Corrections and Treasurer of Missouri as Custodian of the Second Injury Fund, Inj. No. 14-004926 (LIRC, May 31, 2019)*. By mandate dated April 9, 2020, the court confirmed its decision to reverse the Commission's award and decision and remanded this matter to the Commission for further proceedings consistent with the Court's opinion.

In its opinion the Court concluded, "The judgment of the Commission is reversed and remanded with instructions to reinstate the ALJ's award of temporary total disability benefits." *Jeffrey Hicks vs. State of Missouri, Department of Corrections and Treasurer of Missouri as Custodian of the Second Injury Fund, ED108023 (March 17, 2020)*, p. 8. Pursuant to this express directive and the mandate from the court, we issue the following award.

The employer is liable to employee for temporary total disability benefits in the stipulated amount of $26,999.12, as provided in the award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued September 27, 2018. The award and decision of Administrative Law Judge Boresi is attached and incorporated herein.

For necessary legal services rendered to employee, Elizabeth W. Skinner, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

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

**Givens M. Johnson** City, State of Missouri, this **11th** day of June 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**S. Viki Curls**

**Shalonn K. Curls, Member**

Secretary

Employee: Jeffrey Hicks

Injury No.: 14-004926

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund (Open)

Insurer: Missouri Office of Administration

Hearing Date: June 27, 2018

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
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 2, 2014
5. State location where accident occurred or occupational disease was contracted: St. Francois County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. 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.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left Shoulder
14. Nature and extent of any permanent disability: 371 / 2 % PPD of the Left Shoulder plus 3 weeks disfigurement
15. Compensation paid to-date for temporary disability: $\ 1,794.72
16. Value necessary medical aid paid to date by Employer/Insurer: $\ 75,855.44

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Van Camp Law Firm, LLC

Injury No.: 14-004926

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: KOB

The matter of Jeffrey Hicks ("Claimant") proceeded to hearing on June 27, 2018. Attorney Elizabeth W. Skinner represented Claimant. Assistant Attorney General Rachel Harris represented the Missouri Department of Corrections ("Employer"). The Second Injury Fund did not appear, having agreement of all parties to bifurcate the trial as to their liability.

The parties stipulated:

1. On or about January 2, 2014, Claimant sustained an accident arising out of and in the course of his employment.
2. The accident occurred in St. Francois County and venue is proper in Ironton, Missouri.
3. Claimant was employed by Employer and was working under the Workers' Compensation Act (the "Act").
4. Employer was operating under and subject to the provisions of the Act and was either fully insured or was duly qualified as a self-insured employer.
5. Employer had notice of Claimant's accident.
6. Claimant filed his claim within the time allowed by law.
7. Claimant's average weekly wage is $546.23, and the rate of compensation for both temporary total disability ("TTD") and permanent partial disability ("PPD") is $364.15.
8. Claimant's injury was medically causally related to the accident on January 2, 2014.
9. Employer furnished medical aid totaling 75,855.44.
10. Employer paid TTD benefits of 1,794.72 for the periods reflected in Exhibit 13.
11. Claimant reached maximum medical improvement ("MMI") on February 10, 2016.

The issues submitted for determination are:

1. Whether Claimant is entitled to additional temporary total disability benefits in the amount of $26,999.12; and
2. What is the nature and extent of Claimant's permanent partial disability, including disfigurement?

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant testified on his own behalf and presented the following exhibits, which were admitted into evidence without objections:

1. Dr. Michael J. Snyder Reports dated January 22, 2015, and May 13, 2015, and CV
2. Dr. David T. Volarich Report dated August 1, 2016, and CV
3. Metro Imaging
4. Parkcrest Orthopedics, LLC
5. Parkcrest Orthopedics, LLC
6. Farmington Physician Associates
7. Pro Rehab
8. Pro Rehab
9. Pro Rehab
10. Orthopedic Ambulatory Surgery Center of Chesterfield
11. Excel Orthopedics
12. Correspondence Printout of Indemnity Payments
13. VCLF Expenses
14. VCLF Contingent Fee Agreement

Employer presented the following exhibits, which were admitted into evidence:

A. Rating report of Dr. Christopher Lenarz

B. Deposition of Mr. Dave Dormire, and all attached exhibits

C. Personnel Records of Jeff Hicks

D. Personnel Records of Jeff Hicks

E. ERDCC D2-8.6 Leave Without Pay Policy

F. ERDCC D2-8.3 Sick Leave Policy, D2-8.4 Compensatory Time Policy, and Jeff Hicks Probationary Extension Memo

G. Return to Work Notice dated October 7, 2014

H. Memorandum dated October 28, 2014

At the request of the parties, the undersigned Administrative Law Judge took administrative notice of the Division of Worker's Compensation records.

FINDINGS OF FACT

Claimant is a 46-year old, left-handed man who lives in Farmington, Missouri with his wife of 21 years, Angela Hicks. In lieu of graduating from high school, Claimant obtained his GED and joined the Army as a military policeman. His service was cut short when he was honorably discharged after three months due to medical issues related to previous foot surgeries. For a few years, Claimant worked various part-time "kid-jobs" at grocery stores, gas stations, and in a factory in Poplar Bluff. Beginning in 1992, and for two decades thereafter, Claimant held three long-term positions in furniture and glass installation businesses, working up to manager status at each employment. Even as a manager, Claimant engaged in physical activities, including lifting, pushing and pulling. Claimant also started his own business in 2013 selling e-cigarette and vaping merchandise.

In late 2013, Employer hired Claimant as a Corrections Officer I ("COI") at the Eastern Regional Diagnostic Correctional Center ("ERDCC") in Bonne Terre. Claimant began work on

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probationary status, and was required to complete a formal training program, with five weeks of classroom work (written, physical, firearm and defensive tactics training) and the last two weeks on-the-job training, working alongside other COIs. This early training included becoming familiar with the employee handbook, which contained Employer's policies regarding sick time, leave without pay, reviews, and other employment matters. Defensive tactics training required perfecting techniques such as flips, falls, take downs, various blocks and throws of an average-sized adult; application of leg irons, cuffs and belly chains; CPR and first aid, including lifting, rolling and dragging an average-sized adult; and firearms training.

On January 2, 2014, as part of a classroom role-playing exercise with Claimant as the inmate, his partner attempted to place Claimant in the appropriate hold and restraints. The partner did not use the proper technique when he pulled Claimant's left arm up and behind him, and then pushed down, causing Claimant to fall and land on his left arm and shoulder. Claimant felt a pop, exhibited visible signs of injury (sweating), and could not lift his arm. Claimant reported the injury to the training staff, but did not ask for medical treatment at the time. He attempted to use over-the-counter medication, ice and other home remedies for several weeks, and resisted filling out a report of injury for fear of losing his job. However, his arm got progressively worse, inmates commented, "Yo, CO! What's up with your wing?" and he became concerned his injury made him vulnerable.

Dr. Carl Killion began treating Claimant on January 30, 2014, diagnosed possible internal derangement of the shoulder, and ordered an MRI, which when taken on February 6, 2014, showed a posterior labral tear and tendinosis of the cuff attachment. Employer directed Claimant to orthopedist Dr. James Emanuel, who, on February 21, 2014, performed a left shoulder arthroscopic posterior glenoid labral repair, subacromial decompression, and distal clavicle resection with debridement of a torn cartilaginous homolog at the AC joint.

Soon after the surgery, Claimant declined sick pay in addition to TTD during his recovery by writing a letter to Warden Russell. He was concerned he would be fired if he had to exhaust his leave because of this injury. Warden Russell approved 30 days leave without pay as of March 7, 2014.

In the weeks following surgery, Dr. Emanuel took Claimant off work completely, started active physical therapy as of March 3, 2014, found him capable of one-arm duty on March 20, 2014, and changed work status to light/one arm duty on April 21, 2014. Employer made no such work available. Restrictions remained in place through June and July. On July 14, 2014, Employer extended Claimant's probationary period from September 2, 2014, through December 1, 2014, because his on-the-job injury prevented the performance and evaluation of his regular duties.

On August 19, 2014, in response to Claimant's continued complaints of pain at the back of the shoulder radiating down the arm, Dr. Emanuel ordered an MRI arthrogram, which ruled out abnormalities in the labrum and rotator cuff. Accordingly, on August 26, 2014, Dr. Emanuel placed Claimant at MMI and found him capable of full duty work without restrictions.

Claimant did not feel he could return to work. Although the surgery had improved some symptoms, like frequent dislocations, it also resulted in constant pain, limited movement, and greater dysfunction. Claimant understood that in order to return to work, he would have to be

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able to perform at full duty, including completing defensive tactics training. However, Claimant felt "awful," sensed the doctor dismissed his problems, and knew he could not perform as the job required. In fact, he felt he posed a risk to himself and others should he attempt to return at that time.

Claimant immediately presented Dr. Emanuel's full duty release to his supervisor in person, explained that despite the release, his shoulder was not functional, and asked for additional treatment. He was willing to work light duty and asserted he would gladly come back to work as soon as his shoulder "is fixed." Employer denied Claimant's requests for additional treatment or a second opinion (See Exhibit 12).

Claimant's file is silent as to his work attendance or lack thereof, between August 27, 2014 and September 9, 2014 (other than a notation for holiday pay on Labor Day). However, there is a series of documents outlining Claimant's absences on September 10, 11, and 12, representing the first, second and third of his "no call/no show" offenses. According to Employer's records, Claimant worked September 13, 14, 19, 20, and 21, but the 21st was the last day he worked for Employer. Claimant is certain he did not work after the end of August, and asserts the letter stating he worked any days in September is in error.

On October 7, 2014, Warden Russell authored a letter to Claimant instructing him to return to work no later than October 22, 2014, with an essential functions form signed by a physician. Warden Russell specifically stated, "If you are unable to return to work with the signed essential functions [form], you may submit a voluntary resignation in writing effective October 22, 2014. Due to your absences, you will not be allowed to return to work until you submit a signed essential functions form." Warden Russell noted Claimant last worked on September 21, 2014, he has not requested or been approved for leave without pay; he is ineligible for FMLA due to length of employment, and no reasonable accommodation has been made or requested under the ADA.

On October 22, 2014, a pre-disciplinary meeting was scheduled, but Claimant did not attend because he was "just waiting on a [workman comp] doctor's appointment." Warden Russell concluded Claimant's absences from work, as outlined in two "Letters of Caution for AWOL" placed Claimant in violation of the following policies:

1) D2-8.6 Leave of Absence requiring application in writing for LOA;

2) D2-9.3 Unauthorized Absences, defined as when an employee fails to report to work as scheduled, is tardy or leaves work without prior authorization;

3) D2-11(I) Employee Standards regarding professionalism; and

4) D2-11.10(III)(A) Staff Conduct regarding ethical actions.

There is evidence in his file Claimant continued to call in on an irregular basis following his last day of work.

In a letter dated November 18, 2014, Dave Dormire, Director Division of Adult Institutions, fired Claimant, effective November 25, 2014. Director Dormire cited unauthorized absences on September 10, 11, and 12, and a failure to report to duty since September 21, 2014. He called the unauthorized absences "unprofessional" and in violation of:

1 Quoted from Warden Russell's October 24, 2014, memo.

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1) D2-11.10(III)(A) Staff Conduct regarding ethical actions;

2) D2-11(I) Employee Standards regarding professionalism; and

3) D2-8.1(III)(C)(1) Time and Attendance Reporting Section III.C.1 which reads, "Employee shall contact their immediate work supervisor, control center, or other designated staff member at the worksite at least 6 minutes prior to the beginning of their work shirt each day they are unable to work and need to take leave, unless other arrangements are made with the employee's supervisor."

Director Dormire also cited 1 CSR 20-3.070(2)(F) which provides habitual tardiness or absence as an example of cause for dismissal. Director Dormire concluded, "[y]our dismissal is necessary for the good of the service and is required in the interests of the administration of the Division of Adult Institutions."

Dr. Michael Snyder examined Claimant on January 22, 2015, took a history, and reviewed records. He noted Claimant's continued complaint of an aching pain from the anterior aspect of his shoulder down his arm into the biceps region. Dr. Snyder opined Claimant needed additional medical treatment, including conservative treatment and potentially an exploratory surgery with a biceps tenodesis. If he did not receive further treatment, Dr. Snyder opined Claimant had a 35% disability to his left shoulder. On May 13, 2015, Dr. Snyder issued a supplement to his report indicating Claimant had been unemployable and unable to compete² in the open labor market since his injury in January of 2014 until the date of his independent medical evaluation in January of 2015.

On March 16, 2015, Employer authorized Claimant to return to the care of Dr. Emanuel to deal with Claimant's complaints of pain daily. Dr. Emanuel noted Claimant had never improved following surgical correction for the work injury. On April 1, 2015, Dr. Emanuel performed an arthroscopic extensive debridement of glenohumeral joint and removal of scar tissue. There was a course of physical therapy.

Dr. Emanuel kept Claimant off work for one week following the surgery, and Employer paid TTD. Claimant was released to one-handed duty on April 7, 2015, and Employer stopped paying TTD. Claimant was released at maximum medical improvement on April 28, 2015. Dr. Emanuel noted improvement in symptoms following the surgery, but Claimant disagreed - he felt there was no improvement following the second surgery and his complaints increased following his release. He still did not feel capable of safely returning to his employment with Department of Corrections.

Employer returned Claimant to Dr. Emanuel on August 11, 2015. Dr. Emanuel diagnosed AC joint arthritis and provided an injection into the space of the distal clavicle resection. On September 8, 2015, Dr. Emanuel noted the pain in the biceps region and the subdeltoid region along with the posterior part of the shoulder. Dr. Emanuel did not have an explanation for the subjective complaints, which he felt did not match the objective findings, and suggested a second opinion. Claimant, through his attorney, requested a second opinion or pain management, on or about September 11, 2015.

² Dr. Snyder's opinion is validated by Employer's stipulation Claimant did not reach MMI until February 10, 2016.

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On October 30, 2015, Dr. Christopher Lenarz evaluated Claimant and diagnosed Claimant with a left shoulder bicipital labral complex injury with biceps strain and tendinitis. He recommended an intra-articular injection prior to possible surgery. He suggested Claimant have work restrictions prohibiting lifting over thirty pounds with the left arm and avoiding repetitive work with the left arm. He provided Claimant with an injection on November 4, 2015 which provided Claimant four to five days of relief, and continued the restrictions.

On December 17, 2015, Dr. Lenarz took Claimant to surgery and performed a left shoulder arthroscopy, biceps tenotomy, subacromial decompression and debridement, and biceps tenodesis. Claimant was off work and received TTD for one week following surgery, and then placed on a 5-pound lifting restriction, which continued until February 10, 2016, when Dr. Lenarz released Claimant at MMI to return to work without restrictions. Dr. Lenarz opined Claimant sustained 2% PPD of the shoulder. The parties stipulated Claimant reached MMI on February 10, 2016. Claimant has three dime-sized scars on his shoulder.

Claimant continues to feel the effects of his work injury. On a good day, Claimant's pain is about a two on the 10-point pain scale, but with use, the pain climbs to seven or eight, and Claimant must recline, use ice and take Aleve for a few days. His arm goes numb or shakes with normal activity such as pushing a lawn mower or writing. He has limited range of motion and has adjusted body mechanics to accommodate the loss. He feels a significant loss of strength in what had been his stronger, dominant hand. The ways he drives, dresses, and sleeps have been impacted, and he has gained weight due to inactivity. He avoids drive-through windows, ATMs, and any activity requiring left arm extension. Claimant has also experienced symptoms of depression since the accident.

Dr. David Volarich evaluated Claimant at the request of his attorney on August 1, 2016. Dr. Volarich opined the January 2, 2014, injury, was the prevailing factor causing the internal derangement of the left shoulder that required three separate surgical repairs. He noted work was the prevailing factor causing the symptoms, the need for treatment, and the resulting disability.

On examination, Dr. Volarich noted a 20% loss of range of motion in all planes of the left shoulder and continued moderately positive signs of impingement. He found crepitus and atrophy of the deltoid and rotator cuff muscles. Dr. Volarich opined that as a result of the January 2, 2014, injury, Claimant sustained 45% PPD of the left upper extremity. Dr. Volarich recommended restrictions for the left shoulder, including no lifting more than three to five pounds with the left arm extended or 15 to 20 pounds with the left arm alone. He also found, consistent with Dr. Snyder's opinion, Claimant was unemployable until February 10, 2016.

Dave Dormire testified by deposition on behalf of Employer. Director Dormire recently retired from the Department of Corrections after a 42-year career. He began as a COI, held multiple positions, and ultimately served as the Director of Adult Institutions. As the director, he was responsible for all disciplinary actions. He has detailed knowledge of Employer's chain of command, policies, and procedures in general, although he had to rely on Claimant's employment file documents to comment upon Claimant's case in particular. Other than the November 18, 2014, letter he himself signed, other people generated the documents he discussed.

Director Dormire's testimony established employees were trained to know and follow all Employer's policies and procedures, although his testimony focused on policies concerning

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attendance and essential functions of the job. Director Dormire explained, "all positions with Employer are essential and keeping those filled with people that are able to do their job is important." Thus, employees were required to call in when they could not come to work. If they had leave accumulated, they would ask for leave. If the leave is exhausted, an employee could formally request leave without pay in writing, which Claimant did once in March to avoid depleting his leave when he was receiving TTD. If there is no leave available and no written request for leave without pay, an employee must fill out a written application for leave without pay or face discipline. Leave without pay or a leave of absence may be granted for several reasons, including workers' compensation, but employees must apply in writing through the proper chain of command and receive approval. As per policy, no more than 270 calendar days of modified duty were allowed, and as a recent hire, Claimant did not have access to FMLA.

The Director's letter of November 18, 2014, discussed above, set forth the basis for Claimant's termination. In his deposition, the Director summarized the purported reasons Claimant was terminated: failing to call in his absences, not having enough leave to cover his absences and failing to ask for more leave, and violating the policies regarding the reporting and covering of absences. When asked specifically why Claimant was fired, the Director stated, "For violation of three different policies: staff conduct, employee standards and time and attendance reporting." In other words, Claimant was fired for not coming to work and not following policies on requesting leave of absence.

In addition to the absence/leave application issues, Director Dormire discussed the importance of the ability to perform the essential functions of the job to an employee's continued employment. It is noted Claimant was still in his probationary period when he was injured, and the probation was extended because of his work injury. Director Dormire indicated if an employee cannot complete the probationary period, he is terminated. Hiring documents note, "the department reserves the right to terminate your employment should you be unable to perform the essential functions of your accepted position." If Claimant was unable to perform the essential functions of his job, according to Director Dormire, that would possibly place him, his coworkers, and the institution at risk. It would also give Employer the right to terminate his employment.

As designated in the disciplinary correspondence he received, Claimant was required to return to work with written authorization from a physician indicating he was capable of performing the essential functions. Claimant testified he could not physically perform many of the essential functions, especially carrying the dead weight of an average-sized adult and performing the defensive tactics that injured him in the first place. Although he deferred to a medical/vocational expert as to Claimant's abilities, the Director agreed if Claimant could not so perform, he would have been fired.

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Based on a comprehensive review of the aforementioned evidence, including testimony, expert medical opinions and depositions, medical records, other documentary evidence, my personal observations at hearing, and the applicable laws of the State of Missouri, I find:

Claimant seeks to recover TTD until he reached MMI in the stipulated amount of $26,999.12. Employer does not dispute date of MMI or inability to work, but rather asserts Claimant forfeited his right to recover TTD as a matter of law due to his alleged post-injury misconduct.

Total disability under § 287.020.6 of the Act is defined as the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." The purpose of a temporary total disability award is to cover the employee's healing period. *Stevens v. Citizens Memorial Healthcare Foundation*, 244 S.W.3d 234 (Mo.App. S.D. 2008), citing *Birdsong v. Waste Management*, 147 S.W.3d 132, 140 (Mo.App. S.D. 2004). Temporary total disability awards are owed until the employee can find employment or the condition has reached the point of maximum medical progress. *Cooper v. Med. Center of Independence*, 955 S.W.2d 570 (Mo.App. W.D. 1997) citing *Vinson v. Curators of Univ. of Missouri*, 822 S.W.2d 504 (Mo. App. 1991). "The claimant [in a workers' compensation claim] bears the burden of proving all essential elements of his claim[.]" *Hembree v. Treasurer of State*, 435 S.W.3d 165, 171 (Mo. Ct. App. 2014), citing *Liberty v. Treasurer for State of Missouri-Custodian of Second Injury Fund*, 218 S.W.3d 7, 11 (Mo.App.2007).

I find Claimant met his burden of establishing he was absent from the workplace due to a work injury, and he was unable to return to any employment during the periods in question leading up to February 10, 2016. Not only did Claimant testify convincingly on this issue, but also the persuasive medical evidence supports a find Claimant's healing period extended to February 10, 2016. Moreover, the parties stipulated Claimant reached maximum medical improvement on February 10, 2016. Employer is bound by this stipulation and the legal consequences thereof. *Boyer v. Nat'l Express Co.*, 49 S.W.3d 700, 705 (Mo. Ct. App. 2001). Stipulations are controlling and conclusive, and the courts are bound to enforce them. *Id.*, citing *Spacewalker, Inc. v. American Family*, 954 S.W.2d 420, 424 (Mo.App. E.D.1997). Thus, unless Employer can establish a legally and factually sound basis for not paying TTD, Claimant is entitled to recover the TTD sought.

Employer asserts it does not owe any TTD because Claimant was fired after his work place injury for misconduct. Section 287.170(4) of the Act forms the basis for Employer's argument, and reads in part as follows:

> 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.

This statute punishes an employee for post-injury misconduct. *Missouri All. for Retired Americans v. Dep't of Labor & Indus. Relations*, 277 S.W.3d 670, 685-86 (Mo. 2009) (dissenting opinion). Where an employer alleges the employee was fired for misconduct, the employer bears

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the burden of demonstrating misconduct by a preponderance of the evidence³. *Gaddy v. AmeriGas Propane, Inc.*, 334 S.W.3d 907, 910-11 (Mo. Ct. App. 2011), citing *Dobberstein v. Charter Commc'ns, Inc.*, 241 S.W.3d 849, 852 (Mo.App. E.D.2007). Not only does the Act require strict construction at all levels of review (see §287.800), but Missouri courts recognize a long-standing principle that statutes imposing penalties must be strictly construed. *Hoffman v. Van Pak Corp.*, 16 S.W.3d 684, 689 (Mo. Ct. App. 2000). Strict construction means that a "statute can be given no broader application than is warranted by its plain and unambiguous terms." *Robinson v. Hooker*, 323 S.W.3d 418, 423 (Mo. Ct. App. 2010) (citations omitted). The operation of the statute must be confined to "matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter." *Id.* "A strict construction of a statute presumes nothing that is not expressed." *Id.* "The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law." *Ash v. Millennium Restoration & Const.*, 408 S.W.3d 257, 259-60 (Mo. Ct. App. 2013).

While the Act does not identify what constitutes "post-injury misconduct," it does tell us what it is not. The second sentence of §287.170(4) specifies, "the phrase 'post-injury misconduct' shall not include absence from the workplace due to an injury...." (emphasis added). According to Dictionary.com, the word "include" means "to contain, as a whole does parts or any part or element." "Include" is further defined as "to contain as a subordinate element; involve as a factor." Something that is "included" is just one of several parts, elements or factors. Based on the plain meaning of the words in this section of the Act, I find if absence from the workplace due to an injury is one part, element or factor of the termination, the absence is included in the misconduct, even if there are other elements or factors for the termination not involving absence due to injury. Thus, there is one element of proof to establish a termination is outside of the designation of "post-injury misconduct" under the Act - once it is established absence from the workplace due to injury is a factor, element or part included in the justification for an employee's termination, the "post-injury misconduct" penalty provision cannot not apply. See, *i.e.*, *Parsons v. Steelman Transp., Inc.*, 335 S.W.3d 6, 16 (Mo. Ct. App. 2011)⁴.

There is no question Claimant was absent from the workplace due to injury. Employer asserts there are other reasons for the firing: Claimant was terminated for violating Department of Corrections policies regarding staff conduct, employee standards, and time and attendance reporting. It is clear Employer has specific rules, Claimant was aware of the rules, and Claimant did not comply with all the rules⁵. The failure to comply with Employer's policies may form a sufficient basis for termination, but it does not constitute "post-injury misconduct" under the Act⁶. Every reason cited by Employer for termination includes Claimant's absence from work

³ Although *Gaddy* and related cases arise out of Unemployment Compensation cases, the basic principle applies in Workers' Compensation cases, especially given the similarity of the statutory language triggering the forfeiture of benefits. See, also, *Aramark Educ. Servs., Inc. v. Faulkner*, 408 S.W.3d 271, 275 (Mo. Ct. App. 2013) (pursuant to Section 287.808, the employer has the burden of establishing any affirmative defense).

⁴ In *Parsons*, the Court found where the definition of "employee" under the Act "shall not include" four specific requirements (§287.020.1) and the four requirements were established, there was proof the injured party was outside of the designation of being considered an employee under the Act.

⁵ Because of the findings herein, it is unnecessary to address whether Claimant's violation was "willful, wanton, or deliberate."

⁶ See, *i.e.*, *Dameron v. Drury Inns, Inc.*, 190 S.W.3d 508, 512 (Mo.App. E.D.2006); see also *Johnson v. Div. of Employment Sec.*, 318 S.W.3d 797, 807 (Mo.App. W.D.2010) (A violation of an employer's absence reporting policy, which may be adequate cause for dismissal, does not necessarily constitute misconduct connected with work so as to render a claimant ineligible for unemployment benefits).

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due to injury as a factor, element or part of the alleged misconduct. Claimant's improper or unethical staff conduct was not following policies necessitated by absence from work due to injury. Claimant fell short of employee standards by not calling in his absence from work due to injury. Claimant did not comply with the time and attendance reporting required due to his absence from the workplace due to injury. The multiple rule and policy violations cited as the reason for Claimant's firing have at their basis a single fact: Claimant was absent from work due to an injury. Employer may be justified in firing Claimant because of his conduct, but it cannot label the behavior as "post-injury misconduct" to avoid paying TTD due.

There is one exception to the "absence ... due to an injury" exclusion, but the facts in this case do not support its application. The entire second sentence of $\S 287.170(4)$ reads, with emphasis added:

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.

The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law. Shaw v. Mega Indus., Corp., 406 S.W.3d 466, 469 (Mo. Ct. App. 2013). Since strict construction presumes the legislature intended what the plain and unambiguous terms of the statute say, every word must be given meaning.

Having found the alleged misconduct to include absence from work due to injury, the question becomes whether Employer has shown the exception to the rule applies. The only way an employee who is terminated because of absences due to injury could be guilty of "post-injury misconduct" under the Act was if the employer could establish the employee is capable of working with restrictions, as certified by a physician. The scope of this exception is narrow and its purpose reasonable. For example, an employer could claim the exception when the employee was capable of light duty ("capable of working with restrictions") but continued to be absent despite employer's offer to accommodate his restricted duty.

There is no evidence Claimant was capable of working with restrictions, as certified by a physician ${ }^{7}$. Claimant was not capable of working at all, as I have found based on the persuasive evidence and stipulation of the parties. Even if Employer's evidence were found more persuasive, it establishes Claimant was capable of full duty work without restrictions as Dr. Emanuel found on August 26, 2014. Either way, there is no evidence Claimant was capable of working with restrictions at any relevant time when he remained absent from the workplace due to an injury. The exception simply does not apply.

I find the "post-injury misconduct" penalty does not apply and Claimant is entitled to recover his full TTD benefit. Claimant's termination was based on his absence from the workplace due to an injury, and therefore did not constitute "post-injury misconduct" under $\S 287.170(4)$.

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[^0]: ${ }^{7}$ Although it is a moot issue, an entirely different analysis could be required regarding the requirements of the phrase "as certified by a physician." The phrase in $\S 287.170(4)$ has not been addressed by the courts.

Claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Extent and percentage of disability is a finding of fact within the special province of the fact-finding body, which is not bound by the medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975). Under §287.190.6, " 'permanent partial disability' means a disability that is permanent in nature and partial in degree...."

Claimant seeks permanent partial disability as a result of this work injury. Claimant testified to a number of symptoms and limitations in his thrice-operated left shoulder, including a constant ache, numbness and tingling into his hand, and decreased range of motion. He described how the limitations affect activities of self-care and daily living, including lifting, driving, and sleeping. He takes Aleve for pain control. The injury has limited his career options significantly due to the limitations it causes. The credible testimony of Claimant and the evidence, including medical reports, support an award of 371 / 2 % permanent partial disability of the left shoulder, plus, an additional three weeks of disability for disfigurement as a result of the scarring upon Claimant's arm, for a total award of 90 weeks of permanent partial disability compensation.

Claimant is entitled to recover TTD and PPD benefits as herein specified. Claimant's actions do not constitute post-injury misconduct as defined by the Act, and therefore his TTD benefits remain due and owning.

Claimant's attorney requested a fee equal to 25 % of disputed benefits. I find such request is fair and reasonable, and order this amount shall be a lien on the disputed benefits awarded herein.