478
S.W.3d 577 (Mo. App. S.D. 2015)
Full Opinion: [Burlison v. Department of Public
Safety]
Code(s): C011 Safety Violation/Penalty; C012 Procedural (Discovery)
Factual
Background:
Claimant was working for Employer when
she was injured by a patient. This patient would repeatedly put his hand on
Claimant’s waist and rub his hand down her back without Claimant’s consent. On
7/2/10, the patient grabbed Claimant’s left arm and twisted it behind her back,
causing a “loud pop.” Claimant was diagnosed with numerous conditions including
frozen left shoulder and complex regional pain syndrome. Claimant filed an
amended claim requesting an additional 15% penalty under §287.120.4, asserting
that Employer violated §213.055. Of note, Employer testified in his deposition
that no surveillance videos were available. Subsequently a private investigator
was hired and obtained surveillance video.
Commission Decision:
The ALJ denied admission to ER Exhibit
6, which consisted of two surveillance videos of Claimant’s activities. The ALJ
ultimately found Claimant was permanently and totally disabled because of the
injuries sustained on 7/2/10 but denied Claimant’s request to assess the
penalty against Employer. Claimant and Employer both sought review by the
Commission. Claimant argued the ALJ erred in failing to award the penalty.
Employer argued the ALJ erred in excluding Exhibit 6, arguing that Employer
committed no discovery violation as it had no duty to supplement the deposition
testimony. The Commission affirmed and adopted ALJ’s award.
Analysis/Holding:
The Court found that “to be entitled to
the fifteen percent increase under §287.120.4, a claimant must demonstrate the
existence of the statute or order, its violation, and a causal connection
between the violation and the compensated injury.” McGhee v. W.R. Grace & Co., 312 S.W.3d 447, 458 (Mo. App. S.D.
2010). Claimant asserted a violation based on sexual harassment committed by
the patient. The Commission’s findings were sufficient to permit appellate
review, noting that the Commission quoted the applicable statutory provisions
and relevant evidence before determining that the failure to comply with the
statute did not cause Claimant’s injuries. Regarding the surveillance videos,
the Court found that while there is no duty for witnesses to supplement
deposition testimony, a party does have a duty to supplement the deposition
testimony of its representative or testifying experts.
The Takeaway:
It within the Commission’s power to
address whether Claimant met the elements to prove a violation of a Statute; as
well as determine if that violation caused Claimant’s injury. Employer has a
duty to supplement the deposition testimony of its representatives or
testifying witnesses when new discovery causes prior deposition testimony to
become incorrect.