ALTHEA BURLISON, )
)
Claimant-Appellant/Respondent, )
)
vs. ) No. SD33809 & 33816
) Consolidated
DEPARTMENT OF PUBLIC SAFETY, )
)
Respondent-Respondent/ ) Filed: January 29, 2016
Cross-Appellant, )
)
STATE OF MISSOURI AS CUSTODIAN )
FOR THE SECOND INJURY FUND, )
)
Respondent-Respondent. )
APPEAL FROM THE LABOR
AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED
Althea Burlison ("Claimant") and her former employer, the Missouri
Veterans Home in Mt. Vernon, Missouri ("Employer"), both appeal from a final
award issued by the Labor and Industrial Relations Commission ("the
Commission") in a workers' compensation case. In its final award, the
Commission adopted the award of the Administrative Law Judge ("ALJ"), who
found Claimant was permanently and totally disabled and awarded compensation
but denied a penalty requested under Section 287.120.4.1 Claimant argues the
Commission's decision regarding the penalty should be reversed because the
Commission failed to enter sufficient findings of fact and conclusions of law.
Employer challenges the Commission's decision to exclude a surveillance video
from evidence because Employer had committed a discovery violation. These
claims are without merit, and we affirm the Commission's award.
Factual and Procedural Background
Claimant was a certified nurse assistant and worked as a certified
medication technician for Employer. She distributed medication, helped
residents get up in the morning, bathed residents, and helped distribute food at
mealtimes. John Holdeman ("Mr. Holdeman") was a resident who "didn't realize
his own strength" and could be "very gruff." Often Mr. Holdeman touched
Claimant's arm, put his hand around her waist, or rubbed his hand down her
back. Claimant told him to stop several times. He drove by Claimant's house on
at least one occasion, and included Claimant on numerous group emails which
went to her personal email address.
On July 2, 2010, Mr. Holdeman grabbed Claimant's left arm and twisted it
behind her back causing a "loud pop" and immediate pain. Claimant reported the
incident to her supervisor who told Claimant she would "have them talk to" Mr.
Holdeman. Claimant went to the emergency room, saw several doctors, and
received physical therapy. She was diagnosed with numerous conditions
including a frozen left shoulder and complex regional pain syndrome and was
1All references to Section 287.120.4 are to RSMo Supp. (2014). All references to Section 287.215
are to RSMo Cum. Supp. (2013). All references to Sections 287.495.1, 286.090, 213.055, and
287.560 are to RSMo (2000).
2
given work restrictions including "no overhead use of [the] left arm, no lifting
more than one pound, [and] no repetitive use of the left arm." Because the
restrictions prevented Claimant from doing her job, Employer terminated her.
Claimant sought Missouri Workers' Compensation relief based on the
injury to her left shoulder and later filed an amended claim requesting an
additional 15 percent penalty under Section 287.120.4. Claimant asserted a right
to a 15 percent penalty against Employer claiming Employer violated Section
213.055.
On May 12, 2014, the ALJ held a hearing regarding Claimant's allegations.
Employer attempted to admit Exhibit 6, two surveillance videos of Claimant's
activities, which were taken on November 29, 2013, and on December 9, 2013.
The ALJ refused to admit Exhibit 6. The ALJ found Claimant was permanently
and totally disabled because of the injuries she sustained during the July 2, 2010
incident, but denied Claimant's request to assess the penalty against Employer.
Both Claimant and Employer 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. The Commission affirmed and adopted the ALJ's
award.
Both Claimant and Employer appeal.
Standard of Review
"[J]udicial review of the Commission's award is a determination of
whether the award is 'supported by competent and substantial evidence upon the
whole record.'" Moreland v. Eagle Picher Techs., LLC, 362 S.W.3d 491,
3
502 (Mo. App. S.D. 2012) (quoting Hampton v. Big Boy Steel Erection,
Inc., 121 S.W.3d 220, 222 (Mo. banc 2003)). The reviewing court may:
modify, reverse, remand for rehearing, or set aside the award upon
any of the following grounds and no other:
(1) That the [C]ommission acted without or in excess of its
powers;
(2) That the award was procured by fraud;
(3) That the facts found by the [C]ommission do not support the
award;
(4) That there was not sufficient competent evidence in the
record to warrant the making of the award.
§ 287.495.1.
Claimant's Appeal: Findings
In her sole point on appeal, Claimant argues the Commission erred in
failing to enter findings to support its refusal to impose a penalty under Section
287.120.4, claiming the findings the Commission entered are insufficient to
determine what elements Claimant failed to prove. We disagree.
The Commission's findings are sufficient to permit this Court to determine
the basis for the Commission's decision. Section 286.090 requires findings of
fact and conclusions of law in appeals before the Commission. That statute
states:
In every appeal coming before the [C]ommission from any of the
divisions of the department, the [C]ommission shall prepare and
file a written statement giving the [C]ommission's findings of fact
and conclusions of law on the matters in issue in such appeal
together with the reasons for the [C]ommission's decision in the
appeal; except that a decision of a division of the department
meeting the requirements of this section may be affirmed or
adopted without such written statement.
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§ 286.090. "The findings should show whether the basis of the Commission's
decision was an issue of fact or a question of law." Brown v. Sunshine
Chevrolet GEO, Inc., 27 S.W.3d 880, 885 (Mo. App. S.D. 2000). The findings
must permit the appellate court to determine what the Commission found
regarding the elements of the claim in issue. Smith v. Ozark Lead Co., 741
S.W.2d 802, 811 (Mo. App. S.D. 1987) (overruled on other grounds by
Hampton, 121 S.W.3d 220). "However, the Commission is not required to state
the evidentiary facts upon which its ultimate findings may depend; it is sufficient
if the ultimate constitutive facts necessary for judicial review of the award appear
in reasonable detail." Id.
Because the factual findings must address the elements of the claim, some
discussion of the law pertaining to Claimant's underlying argument is necessary.
Claimant sought imposition of a penalty under Section 287.120.4, which provides
that "[w]here the injury is caused by the failure of the employer to comply with
any statute in this state or any lawful order of the division or the commission, the
compensation and death benefit provided for under this chapter shall be
increased fifteen percent." Id. "To be entitled to the fifteen percent increase
under Section 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) (quoting Akers v. Warson Garden Apts., 961 S.W.2d
50, 53 (Mo. banc 1998) (overruled on other grounds by Hampton, 121 S.W.3d
220).
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Claimant asserted a violation of Section 213.055 of the Missouri Human
Rights Act based on sexual harassment committed by Mr. Holdeman. Assuming,
without deciding, that a sexual harassment claim might support a Section
287.120.4 penalty,2 Claimant's argument fails because the findings were
sufficient to show which elements of her sexual harassment claim she failed to
prove.
To prevail on a hostile work environment sexual harassment claim,
a plaintiff must prove: (1) she (or he if the claim is brought by a
male) is a member of a protected group; (2) she was subjected to
unwelcome sexual harassment; (3) her gender was a contributing
factor in the harassment; and (4) a term, condition or privilege of
her employment was affected by the harassment.
Hill v. Ford Motor Co., 277 S.W.3d 659, 666 (Mo. banc 2009). When
addressing a claim involving sexual harassment by a third party, "[t]he analysis
must focus on identifying when the employer knew or should have known that its
employee was being subjected to harassment based on the employee's 'race,
color, religion, sex, or national origin.'" Diaz v. Autozoners, LLC, No.
WD77861, 2015 WL 6937325, at *5 (Mo. App. W.D. November 10, 2015) (quoting
Freeman v. Dal-Tile Corp., 750 F.3d 413, 426 (4th Cir. 2014)).
When an employee suffers discrimination by a third party who the
employee comes into contact with because of the employment
relationship, and the harassment is sufficiently severe and
pervasive to create a hostile work environment, the employer
breaches its duty if it knows or should have known of the
discrimination and fails to take prompt and effective remedial
action.
2Neither party cited a case where a Section 287.120.4 penalty was assessed based on a violation of
Section 213.055. Nor were we able to locate such a case in our own independent research.
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Id. at *6. One way an employer's knowledge may be shown is through evidence
of an employee's reports of the harassing conduct. Mason v. Wal-Mart
Stores, Inc., 91 S.W.3d 738, 742 (Mo. App. W.D. 2002).
Here, the Commission's findings are sufficient to permit appellate review.
First, the Commission quoted the applicable statutory provisions. Then, the
Commission discussed Claimant's testimony regarding Mr. Holdeman's
unwanted attentions and Claimant's assertion that she reported all the problems.
The Commission also made findings regarding the testimony of Mr. James
Dennis ("Mr. Dennis"), Employer's Institutional Superintendent; Ms. Joan
Elwing, Employer's Director of Nursing; and Ms. Diane Huckeby, Claimant's Unit
Manager, who testified that they did not recall Claimant making any reports that
Mr. Holdeman was mistreating, physically assaulting, or acting in a sexually
inappropriate manner toward Claimant until after July 2, 2010. The Commission
then resolved this evidentiary conflict in favor of the supervisors, concluding
"that [C]laimant has not met her burden of proof" on her sexual harassment
claim. The Commission then also stated that failure to comply with Section
213.055 did not cause Claimant's injury.
These remarks accomplish three things. First, they lay out the applicable
law. Then, they summarize the evidence regarding the claim. Finally, they make
a credibility determination regarding the conflicting evidence. When that
credibility determination is compared to the case law, it is clear how the
Commission decided the disputed issues. The facts the Commission discussed
involved whether Claimant reported the conduct to Employer. Whether the
conduct was reported relates to whether the employer knew about the harassing
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conduct, see id., a fact which was an essential element of Claimant's assertion
that Employer violated the MHRA by failing to prevent Mr. Holdeman's
harassing conduct, see Diaz, 2015 WL 6937325, at *6. The Commission also
made a determination of ultimate fact regarding the element of causation.
The findings were sufficient to permit appellate review. Claimant's sole
point on appeal is denied.
Employer's Appeal: Surveillance Video
In the sole point in its cross appeal, Employer argues the Commission
erred in excluding Exhibit 6 because Employer committed no discovery violation
as it had no duty to supplement Mr. Dennis's deposition after the deposition had
been taken. We disagree.
These additional facts are relevant. During preparation for the hearing,
Claimant filed a notice of deposition announcing she would take the deposition of
one of Employer's representatives. The notice also requested production of
several documents, including "[a]ll matters that have recorded surveillance
activities of the Claimant as defined in Rule 56.01[.]" Employer produced Mr.
Dennis as Employer's representative for deposition on August 23, 2013. During
the deposition, Mr. Dennis testified Employer had conducted no video
surveillance of Claimant. Employer subsequently hired private investigator
Robert Cirtin ("Mr. Cirtin") to conduct surveillance of Claimant. Mr. Cirtin
observed Claimant on November 29, 2013, and again on December 9, 2013, and
created a video of Claimant's activities on those dates. During Employer's cross
examination of Claimant, Employer sought to admit Mr. Cirtin's video as Exhibit
6. Claimant objected because the video had not been disclosed despite her
8
request in the notice of deposition. Employer argued it had no duty to
supplement its response to the request under Rule 56.01(e) because the duty to
supplement created by Rule 56.01(e) did not apply to depositions.3 The ALJ
ruled the video would not be admissible, as did the Commission.
Section 287.560 permits the use of depositions in workers' compensation
cases. The statute provides in pertinent part that "[a]ny party shall be entitled to
. . . at his own cost to take and use depositions in like manner as in civil cases in
the circuit court[.]" § 287.560. Because of the phrase "in like manner as in civil
cases[,]" the Supreme Court of Missouri has held "that the rules of civil procedure
governing depositions in civil actions also govern . . . depositions taken pursuant
to section 287.560." State ex rel. McConaha v. Allen, 979 S.W.2d 188, 189
(Mo. banc 1998).
Under the civil rules governing depositions and the case law interpreting
those rules, there is a limited duty to supplement information provided via
deposition. In Crompton v. Curtis-Toledo, Inc., 661 S.W.2d 645, 650 (Mo.
App. E.D. 1983), the Eastern District of this Court reasoned that a defendant has
a right to rely upon a party's deposition testimony such that a party-deponent has
a continuing duty to supplement deposition testimony when the party-deponent
discovers new information. Relying in part on Crompton, the Western District
of this Court also found there is a duty to supplement the deposition testimony of
an expert witness where the expert witness changes his or her opinion before
trial. Gassen v. Woy, 785 S.W.2d 601, 603-04 (Mo. App. W.D. 1990). While it
is true there is no duty for witnesses to supplement deposition testimony, a party
3 All rule references are to Missouri Court Rules (2015).
9
does have a duty to supplement the deposition testimony of its representatives or
testifying experts.
Mr. Dennis was produced for deposition as Employer's designated
representative. In this context, he was a representative of a party. Consequently,
Employer had to inform Claimant of the surveillance videos when it discovered
that the deposition testimony was no longer correct. See Crompton, 661 S.W.2d
at 650.
To support its argument to the contrary, Employer discusses Fisher v.
Waste Mgmt. of Mo., 58 S.W.3d 523 (Mo. banc 2001), and the legislature's
decision to amend Section 287.215 in 2005. Employer notes that Fisher held
that video surveillance was discoverable under Section 287.215 and that the
legislature later amended Section 287.215 such that the section did not apply to
video surveillance. However, Section 287.215 is not implicated here. Claimant
did not seek production of the video under that statute. Rather, Claimant
requested production of the video in conjunction with the deposition. The
governing statute is Section 287.560, and the analysis is not affected by any
changes to Section 287.215.
Employer's discussion of the difference between the duty to supplement a
deposition and the duty to supplement a response to a subpoena duces tecum is
similarly unavailing. That is not the mechanism employed in this case, so those
legal principles are not relevant to the resolution of the issues presented here.
Employer's sole point on appeal is denied.
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Decision
The Commission's award is affirmed.
MARY W. SHEFFIELD, C.J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS
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