Missouri: No 15% Penalty For Employment Discrimination

Missouri compensation allows a 15% enhancement of statutory comp  benefits when the employer fails to comply with state law and the injury is caused by the failure. Although most cases invoke 287.120.4 (Lexis Advance), 287.120.4 (lexis.com) for  failure to guard or similar safety issues, a recent case attempted to invoke the penalty for employment discrimination.  Burlison v Dept of Public Safety, 2015 Mo WCLR Lexis 10 (Lexis Advance), 2015 Mo WCLR Lexis 10 (lexis.com).  The Commission affirmed a denial of the penalty based on insufficient evidence and not on whether the cause of action itself could be asserted. 

Claimant alleges that the employer made her work with a resident who was unruly, disruptive, and had grabbed her, emailed her, proposed to her and drove by her home.  She asserts the employer did not take action to correct this practice. As a result, claimant appears to allege she was discriminated against based on her protected class status and was “segregated”, resulting in being deprived of her individual or employment opportunities.  The ALJ found insufficient evidence of “segregation” required by 213.055.1(b) (Lexis Advance), 213.055.1(b) (lexis.com) or proof that any prohibited employment practice caused the injury.  The ALJ found a compensable injury when her arm was grabbed.

The Commission awarded total disability to the 61-year-old public employee who established that after a resident pulled her arm she could not longer use it and she developed RSD-like symptoms and permanent psychiatric disability.  The ALJ barred the employer from introducing two days of surveillance due to a technical issue regarding a request for production.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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