The Law Office of Kurt H King

June 6, 2012

Wrongful Discharge of Organ Donor Employee

The recent Missouri appellate decision in Phyllis Delaney v. Signature Health Care Foundation, Opinion ED97419 filed May 22, 2012, handed down by Eastern District of Court of Appeals, sheds additional light on Missouri’s prohibition against firing employees contrary to public policy.  In this case, the employee asked for four weeks after surgery to donate a kidney to her brother.  The employer first gave the employee the green light, then said “no” three days before the surgery.  The employer refused to hold the employee’s position open and discharged the employee.

Ironically, the employer calls itself a health care foundation.  A foundation is often a body formed to serve charitable interests.  One would think a foundation of the health care variety would support its employee in being an organ donor, but apparently not so here.  Have to wonder!

The sole point on appeal is whether in donating a kidney the employee acted in a manner public policy would encourage.  The relatively obvious answer is “yes,” donating a kidney is something the public policy of the State of Missouri encourages.   The court of appeals therefore sent the case back down to the lower trial court so the employee may continue her case for wrongful discharge against the foundation that wrongfully discharged her from her job as a data entry clerk.

In its opinion, the court of appeals kindly listed these four categories of public policy exceptions to Missouri’s general rule that an employer may fire its at-will employees with or without cause: (1) refusing to perform an illegal act or an act contrary to strong public policy mandate; (2) reporting the employer or fellow employees to third parties for violations of law or public policy; (3) acting in a manner public policy would encourage; or, (4) filing a claim for workers’ compensation.  The third exception applied in this case and therefore the employer could not fire the employee for not being at work due to donating a kidney, an act encouraged by various Missouri laws discussed in the court’s opinion.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Litigation, Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy for Debtors, Family Law, General Matters

 

February 27, 2012

Employer Loses Motion for Change in Condition of Permanent Total Disabled Workers’ Compensation Claimant In Missouri

In 1996, a Smitty’s Supermarket employee fell off a pallet raised by a forklift and suffered head injuries which left him Permanently Totally Disabled (PTD), although his disability rating was 70% of the body as a whole.  However, at trial the Administrative Law Judge (ALJ) penalized the employer another 15% for failure to comply with the safety provisions of Missouri’s section 292.020.  In 2002, Missouri’s Labor and Industrial Relations Commission upped the award in favor of the employee from one of Permanent Partial Disability (PPD), determining instead that the employee was Permanently Totally Disabled (PTD). 

Later, after extensive medical treatment and rehab, the employee put his life together enough to marry, have a child, and work a string of jobs.  As a result, the employer filed in 2010 its second motion for an order of the Commission downgrading the employee’s injury from total to partial disability.  The Commission sent the motion to an ALJ for hearing.  Both sides hired doctors as experts but the employer’s doctor observed the employee only ” a single day” and failed to interview his wife, family, and others with details on how the injury continued to seriously affect the employee.

Ultimately, the Commission dismissed the employer’s motion because “although Employer had presented evidence that Claimant [Employee] had undergone numerous life changes since the original award in 2002, it ‘did not present any new MRI scans of [Claimant’s] brain or any other concrete evidence showing an actual physical change in condition of [Claimant’s] brain.’ ”   The Southern District of the Missouri Court of Appeals affirmed in Pavia v. Smitty’s Supermarket, Slip Opinion SD31275 filed  02-17-2012.

The moral of the story seems to be that an employer must bring in sufficient proof of change in the physical condition of the injured parts of the employee’s body in order to prove that that the employee is not longer Permanently Totally Disabled.  

And while this case involved an injury prior to the 2005 amendments to Missouri Workers’ Compensation laws, there seems to have been no change made to the applicable statute–287.470.  See Sachs Electric Co. v. Mapes, 254 S.W.3d 900, 902-03 (Mo. Ct. App. W.D. 2008), where the court continued to require proof of a change of physical condition even after the 2005 statutory amendments.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy for debtors

Child Custody, Support, & Visitation; Divorce & Modification; Paternity

December 28, 2011

Missouri Workers’ Compensation Law on Claims by Health Care Providers

Under Missouri Workers’ Compensation law the employer or its work comp insurer are supposed to pay for medical treatment necessary to care for the employee’s injury.  However, when the employee’s work comp claim settles for a final lump sum, part of the settlement paid to the employee may include an amount for any unpaid medical expenses owed to health care providers who have not yet been paid.  Then the burden shifts to the employee to pay any outstanding medical bills.  The question is how much does the employee have to pay the health care provider–the full amount of the bill or the much smaller percentage (often 20% or less) that an insurance company like Blue Cross Blue Shield would have to pay.

A few years ago, Missouri law changed section 287.140 of the Revised Missouri Statutes to clearly state in subsection 3 that no health care provider may charge the employee more than the amount that would have been due from a health insurance company or if the patient was a private pay.  Thus, the employee in these situations need pay no more than the percentage that the insurance carrier would have paid, saving perhaps 80% or more off the full amount that a health care provider may bill without knowing of the law or in hopes of obtaining full payment. 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Missouri Workers’ Compensation Law, Personal Injury, Lender Liability Litigation, Divorce & Modification, Child Custody & Support, Family Law, Bankruptcy

Late Payment of Compensation Checks–Missouri Workers’ Compensation Claims

In some cases, a work comp insurance company drags its feet or refuses to pay the injured employee the “weekly” compensation checks for Temporay Disability due the employee while recovering from or receiving medical treatment for the injury.   This is extremely frustrating for the injured employee now trying to make ends meet on work comp which pays no more than 2/3 of the worker’s wages and even that amount is capped so that employees making good money do not receive the full 2/3 amount.

Missouri work comp law is not a big help.  Section 287.160 merely provides in subsection 3 that the payments are to be made as frequently as the employee was paid at the time of injury, but at least bi-weekly.   Unfortunately, the penalty for late payment is only 10% simple annual interest AFTER THE PAYMENT IS MORE THAN 30 DAYS LATE.

Too, in rare cases an unreasonable refusal to pay the compensation due results in an award of attorneys fees/costs to the employee.  Don’t hold your breath expecting one of these attorney fees awards.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Missouri Workers’  Compensation, Personal Injury Law, Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law

December 20, 2011

Permanent Total Disability and Death from Other Causes in Missouri Workers’ Compensation Claims/Cases

Missouri courts are making law on what happens when a Permanently Totally Disabled (PTD) worker dies from other causes before his/her claim reaches final resolution.

The key statutes are 287.020.1, 287.200, and 287.230 which Missouri lawmakers amended effective June 26, 2008, in order to change the result of Missouri Supreme Court’s January 9, 2007, decision in the case of Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900.

Schoemehl holds that the definition of an “employee” includes his dependents as stated in 287.020.1.  Therefore, the dependents of an PTD employee who dies from other causes shall receive the compensation due the deceased employee for as long as the DEPENDENT shall live.

However, Missouri law makers overrode Schoemehl by revising the above statutes to provide that for purposes of PTD compensation under 287.200, the term “employee” does NOT include dependents.  But this change in law has been held to be substantive and thus the changes cannot be retro-respectively applied to claims that were filed (accrued?) prior to June 26, 2008–the effective date of the lawmakers’ statutory changes.

So a PTD claim that is pending–why not include also injuries sustained or reported but no claim yet filed?–and not yet finally decided during the “Schoemehl Window”–January 9, 2007 to June 26, 2008--is entitled to much more workers’ compensation that if your claim is filed [accrued?] after June 26, 2008.  See the recent decision of the Western District of the Missouri Court of Appeals in Goad v. Treasurer of the State of Missouri, dated November 22, 2011 (WD72820).

Another thought is that it may be wise to list all the dependents on claims for PTD so that the workers’ compensation judge may make orders that in the event of the death from other causes of a PTD worker with a claim inside the Schoemehl window that the post-death PTD compensation shall be paid to the dependents for their lifetimes.  Such an order was approved in Tilly v. USF Holland Inc., 325 S.W.3d 487 (Mo. Ct. App. E.D. 2010).

It is important to keep in mind that the law is far different for workers’ compensation Death claims where the injured worker dies from his injury, or where the worker is only Permanently Partially Disabled.  So disregard the above if the work injury caused the worker’s death or permanent total disability is not present.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law

Personal Injury, Missouri Workers’ Compensation

July 20, 2010

Missouri Workers’ Compensation–the Second Injury Fund (via Kurt’s Take on Law)

Many folks do not know that there is a Second Injury Fund in the State of Missouri that can lead to your receiving more in workers compensation benefits than would otherwise be the case. Missouri set up the Second Injury Fund (SIF) years ago to pay injured workers an extra amount of workers compensation when they have significant or substantial "old"  or prior injuries.  When the/those prior injuries (which do NOT have to be on the job injuries– … Read More

via Kurt's Take on Law

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

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