MO: Employer Sanctioned Nearly $46,000 for “Starving Out” Claimant

The employer disputed if claimant's accident arose out of and in course of employment when claimant was asked to drive about 45 minutes to help staff another convenience store in Hollister, MO.  Claimant lost control of her car resulting in multiple injuries including the need for an ORIF hip. She was temporarily disabled for about 7 months. The ALJ awarded $45,865.83 in penalties against the employer for unreasonable defense.  Harness v Southern Copyroll, 291 S.W.3d  299 (Mo. App. 2009) found travel compensable when work requires travel away from the primary business.  The ALJ found the travel between stores was for the sole benefit of the employer, and dismissed the argument the claimant violated company policy not to clock out once she left the store.  The employer offered no evidence to contest the duration of TTD or amounts of medical bills.   The employer had no basis to deny the 50% hip disability found by its own expert.   "It is unconscionable to starve out the Claimant by continuing to deny medical care and temporary total disability once compensability is clear and the injuries are severe."

The Commission affirmed an award of $229,373.12, which included the penalties, and awarded future medical including vehicle modification and permanent total benefits for the 49-year old claimant.  Claimant reported since the surgery she had severe posture problems that limited her ability to drive and sit in front of a computer. A vocational expert felt she could perform some sedentary work such as an illustrator because she previously worked 25 years as a graphic artist.  ALJ Mahon concluded it was a close case but found that claimant was unemployable because of her limits with her posture and questionable capacity to maintain the pace of the employment.  Robin Johnson v Jared Enterprises, DOLIR 8-10-11.   

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

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