A worker who has a dispute about collecting a worker's compensation award must rely upon civil remedies and does not have an independent tort claim to recover punitive damages and pain and suffering, according to a new decision from the court of appeals. Deane v Missouri Employers Mutual Ins. Co., WD 76508, 2014 Mo. App. LEXIS 481 (lexis.com), 2014 Mo. App. LEXIS 481 (Lexis Advance) (April 29, 2014). The dispute arises out of a 2002 accident in which a 49-year old worker fell from a platform and was rendered paraplegic and permanent and total disability benefits but the worker asserted the employer had not complied with providing all required medical benefits. The Commission's decision awarded a van, home modification, home cleaning, physical therapy and attorney's fees. Deane, 2012 Mo WCLR Lexis 20 (lexis.com), 2012 Mo WCLR Lexis 20 (Lexis Advance). The ALJ describes the "equally difficult track record" on the part of the employer and the employee regarding providing care and reasonably complying with treatment. The ALJ noted a "general failure of both parties to communicate" and indicated "it is my hope that both parties can work together..." as they will "continue to be in a lifelong relationship."In 2012 Deane registered the award as a judgment in the Circuit Court of Boone County and the claimant asserted the employer subsequently failed to provide a medially necessary van and shoulder surgery. The employer had provided a van previously in the case and indicated it would provide transportation for all medical appointments. Claimant contends he could not have shoulder surgery until he had a wheelchair accessible van. The circuit court dismissed the petition for failing to state a cause of action. In order to withstand the motion, "the petition must invoke substantive principles of law entitling plaintiff to relief." The court found no such cause of action in tort for failure to comply with the terms of a judgment entered pursuant to 287.500 (lexis.com), 287.500 (Lexis Advance), based on Missouri law or in the Restatement, and that claimant was not left without a remedy. "We reject Appellant's contention, finding no such cause of action has been recognized in this State and we see no compelling reason to do so now." Claimant has other remedies to enforce judgments including civil contempt and attachment or garnishment. "We are left unconvinced that those powers are insufficient to the task in the case at bar. "
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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