Anita Paxton v. Little Sisters of the Poor

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 14-001314

**Employee:** Anita Paxton

**Employer:** Little Sisters of the Poor

**Insurer:** Old Republic Insurance Company

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 following issues:

1. Was employee's surgery to repair the peroneal nerve in her left ankle medically causally related to her work injury on January 11, 2014?
2. Did employee's January 11, 2014, accident cause a traumatic olecranon bursitis with MRSA to develop in employee's right elbow?
3. What is the nature and extent of employer/insurer's liability for permanent partial disability benefits, if any?
4. Did employee engage in post-injury misconduct?

The administrative law judge determined:

1. Surgery to repair the peroneal nerve in employee's left ankle was medically causally related to her January 11, 2014, work injury.
2. Employee's January 11, 2014, work accident caused a traumatic olecranon bursitis with MRSA in employee's right elbow.
3. Employer/insurer is liable to employee for 25% permanent partial disability of the left ankle and 7.5% permanent partial disability of the right elbow.
4. Employee did not engage in post-injury misconduct.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred in that:

1. Employee failed to provide evidence that her work injury caused the subsequent fall injury to her right elbow.
2. Employee failed to provide evidence that her work injury caused ill-being of her peroneal nerve.
3. Employee engaged in post-injury misconduct in that employee knowingly committed three errors, each of which violated Missouri state laws and the policies of employer, and which could have caused death, an injury or injuries to patients, staff or the public, entitling employer to a repayment of temporary total disability benefits it paid employee after a Temporary Award.
4. The percentage of permanent partial disability awarded in regard to employee's right elbow and left ankle was not supported by the facts and expert opinions.

Injury No.: 14-001314

Employee: Anita Paxton

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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.

**Did employer discharge employee for post-injury misconduct, for purposes of § 287.170.4 RSMo**

We adopt the following factual findings of the administrative law judge:

In February 2013, the Employer hired Claimant as a registered nurse. She supervised CNAs, directed patient care, administered medication, evaluated patient mental and social status, provided emotional support to patients and tried to make residents feel at home. The pharmacy required a staff member to receive Schedule I and II drugs onto patient floors. Claimant knew these drugs were kept in a locked safe inside a locked medication chart, and the drugs were highly regulated to prevent theft.

We find employee was aware of employer's policy relating to safe dispensing and administration of controlled medications in a nursing home in compliance with Missouri Department of Health and Senior Services, Division of Regulation and Licensure rules regarding controlled substances.

The employee did not appear or testify at the final, December 13, 2019, hearing. However, the administrative law judge's March 9, 2020, award incorporated testimony of employee presented at the earlier February 17, 2015, hearing for the Temporary or Partial Award, and employee's October 22, 2014, deposition testimony. In her May 27, 2015, *Temporary or Partial Award* in this matter, the administrative law judge stated, "I find Claimant was not generally credible about her administration of medication post injury and may have committed errors that violate state and/or local policies." In the March 9, 2020, final award, the administrative law judge reiterated, "Claimant offered conflicting testimony about whether she left the medication cart and medication door unlocked on April 3 and received a warning, whether she gave a resident the wrong medication, if she watched the resident take the medicine or if she saw Exhibit C, the verbal warning." We adopt these findings. We credit the employee's original October 22, 2014, deposition admission that she left a medication cart unlocked as she watched television with patients in an adjacent room because of "The fact that I trusted them."

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.

1 Award, p. 7.

2 *Temporary or Partial Award*, p. 15.

3 *Award*, p. 23.

4 *Transcript*, 580.

Injury No.: 14-001314

Employee: Anita Paxton

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The administrative law judge concluded that the employee did not commit post-injury misconduct as a matter of law because employee's errors relating to administration of medication to employer's nursing home patients were not willful but merely negligent or careless. While acknowledging that employee's decision to leave a medicine cart unlocked violated employer's policy as well as state law, the administrative law judge nonetheless concluded that employee "lacked the requisite intent for her action to rise to the level of misconduct". *Temporary or Partial Award, p. 14*. The administrative law judge further found noting inconsistencies in employer's evidence, that employer failed to meet its burden of proving post-injury misconduct.

The administrative law judge considered the statutory definition of misconduct included in § 288.030.1(23) as support for the conclusion that "Under the Employment Security chapter, 'Misconduct' suggests a 'willful disregard,' 'deliberate violation' or negligence or recurrence to the extent it manifests culpability. We disagree.

Section 288.030.1(23), specifies that work-connected misconduct shall include, among other behaviors:

(a) Conduct or a failure to act demonstrating ... knowing violation of the standards which the employer expects of his or her employee;

(e) A violation of an employer's rule, unless the employee can demonstrate that:

a. He or she did not know, and could not reasonably know, of the rule's requirements;

b. The rule is not lawful; or

c. The rule is not fairly or consistently enforced.

In *Esquivel v. Hy-Vee, Inc., 498 S.W.2d 832 (Mo. App. 2016)*, the appellate court specifically found that whether an employee's admitted violation of an employer rule was deliberate was irrelevant, except insofar as such evidence established that the employee did not know of the rule. *Id., at 836*. The court subsequently clarified this finding by limiting its application to employer rules that are specific in nature, barring particular and well-defined acts. *Wayne v. Div. of Empl. Sec., 600 S.W.3d 29, 37 (Mo. App. 2020)*.

As we have found, employee was aware of employer's policy and specific state regulations designed to ensure safe handling and administration of controlled medications in employer's nursing home setting. Employee violated employer's known policy as well as state safety regulations when she left a cart with controlled medications unlocked and out of her sight while she watched television with patients in an adjacent room. Irrespective of whether employee actually intended to harm employer's residents or whether any harm resulted from her actions we find that employee's irresponsible, dangerous, unlawful, admitted behavior constituted work connected misconduct pursuant to § 287.170.4 RSMo.

Employer documented two incidents that involved employee leaving a medication cart unlocked and unattended in its written warning dated April 3, 2014 and April 15, 2014. Employer thereafter discharged employee on May 5, 2014. Pursuant to § 287.170.4 RSMo, employee is therefore not entitled to temporary total disability benefits after her May 5, 2014, discharge.

**Decision**

We modify the award of the administrative law judge as to the issue of temporary total disability benefits. Because employer terminated employee from her employment for post-injury misconduct, employee is not eligible for temporary total disability benefits after her May 5, 2014.

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Discharge. Employer/insurer is entitled to 12,605.85 (36,959.18, the stipulated amount employer paid employee for temporary total disability benefits from May 5, 2014, until July 26, 2015, in compliance with the Temporary or Partial Award in this matter, less $24,353.33, permanent partial disability awarded to employee by this award).

The awards and decisions of Administrative Law Judge Suzette Carlisle Flowers, issued May 27, 2015, and March 9, 2020, are 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 5th day of January 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reld K. Forrester, Member

SEPARATE OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 14-001314

Employee: Anita Paxton

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 disagree with the majority's award to the extent that it finds that employer discharged employee for post-injury misconduct and orders employee to reimburse employer for temporary total disability benefits it paid her on account of her compensable injury nearly five and a half years ago. I would affirm the administrative law judge's award as written.

At the outset, I take issue with the provisions of § 287.170.4 RSMo. I agree with the words of the late Judge Richard B. 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, the administrative law judge properly noted that post-injury misconduct is an affirmative defense and that the burden lies with employer to prove this issue. The administrative law judge observed employer's witnesses fir