ALTHEA BURLISON, Claimant-Appellant/Respondent v. DEPARTMENT OF PUBLIC SAFETY, Respondent-Respondent/Cross-Appellant, and STATE OF MISSOURI AS CUSTODIAN FOR THE SECOND INJURY FUND, Respondent-Respondent.

• Court: Missouri Court of Appeals
• Decided: January 29, 2016
• Docket: SD33809, SD33816
• Status: Published

Opinion

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.

4 § 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).

5 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.

6 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

7 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.

10 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