Workers' Compensation

Chris T. Archer, Esquire

The “compensation” awarded against the Second Injury Fund is not to be included in the calculation of the Employer’s 15% penalty for violation of a statute consistent with § 287.120.4, RSMo. Hornbeck v. Spectra Painting, No. 92116 (Mo. banc, July 31, 2012), Russell, J.

Section 287.120.4 provides: “Where the injury is caused by the failure of the employer to comply with any statute in this state . . . the compensation and death benefit provided for under this chapter shall be increased fifteen percent.”

The commission found that the employer violated § 292.090, RSMo., and awarded the 15% penalty but did not include the amount of the compensation awarded to the claimant from the Second Injury Fund. It affirmed the inclusion of the medical expenses paid and awarded although that inclusion was not contested.

The court ruled that the 15% calculation should not include the “compensation” awarded to be paid by the Second Injury Fund for pre-existing injuries.

After 2005, the “assault doctrine” developed by case law before 2005, that defined when an assault that occurs at work arises out of and in the course of a claimant’s employment is still applicable. Flowers, et al. v. City of Campbell, et al. No. 31440 (Mo. App. S.D., August 31, 2012), Bates, J.

In a wrongful death case, an employee of a Dollar General store was killed when her estranged boyfriend entered the store where she was working and shot her with a shotgun. Suit was brought against Dolgencorp d/b/a Dollar General. A summary judgment motion was filed and sustained by the circuit court judge with Dollar General arguing the exclusive jurisdiction of the worker’s compensation act. They argued that the fatal assault arose out of and in the course of the employee’s employment.

The court overturned the granting of summary judgment.  The court stated that § 287.120.1 states:  "[t]he term ‘accident’ as used in his section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence if assault against the employee by any person."  As this provision has long been interpreted by case law to exclude from compensation benefits assaults that occur that stem from a personal quarrel. The court stated that the legislature failed to change this section in 2005 therefore it intended for the "assault doctrine" to survive.