287.120. Liability of employer set out--compensation increased or reduced, when--use of alcohol or controlled substances or voluntary recreational activities, injury from--effect on compensation--ment - Missouri Statutes

Liability of employer set out--compensation increased or reduced,when--use of alcohol or controlled substances or voluntaryrecreational activities, injury from--effect oncompensation--mental injuries, requirements, firefighter stressnot affected.

287.120. 1. Every employer subject to the provisions of this chaptershall be liable, irrespective of negligence, to furnish compensation underthe provisions of this chapter for personal injury or death of the employeeby accident arising out of and in the course of the employee's employment,and shall be released from all other liability therefor whatsoever, whetherto the employee or any other person. The term "accident" as used in thissection shall include, but not be limited to, injury or death of theemployee caused by the unprovoked violence or assault against the employeeby any person.

2. The rights and remedies herein granted to an employee shallexclude all other rights and remedies of the employee, his wife, herhusband, parents, personal representatives, dependents, heirs or next kin,at common law or otherwise, on account of such accidental injury or death,except such rights and remedies as are not provided for by this chapter.

3. No compensation shall be allowed under this chapter for the injuryor death due to the employee's intentional self-inflicted injury, but theburden of proof of intentional self-inflicted injury shall be on theemployer or the person contesting the claim for allowance.

4. Where the injury is caused by the failure of the employer tocomply with any statute in this state or any lawful order of the divisionor the commission, the compensation and death benefit provided for underthis chapter shall be increased fifteen percent.

5. Where the injury is caused by the failure of the employee to usesafety devices where provided by the employer, or from the employee'sfailure to obey any reasonable rule adopted by the employer for the safetyof employees, the compensation and death benefit provided for herein shallbe reduced at least twenty-five but not more than fifty percent; provided,that it is shown that the employee had actual knowledge of the rule soadopted by the employer; and provided, further, that the employer had,prior to the injury, made a reasonable effort to cause his or her employeesto use the safety device or devices and to obey or follow the rule soadopted for the safety of the employees.

6. (1) Where the employee fails to obey any rule or policy adoptedby the employer relating to a drug-free workplace or the use of alcohol ornonprescribed controlled drugs in the workplace, the compensation and deathbenefit provided for herein shall be reduced fifty percent if the injurywas sustained in conjunction with the use of alcohol or nonprescribedcontrolled drugs.

(2) If, however, the use of alcohol or nonprescribed controlled drugsin violation of the employer's rule or policy is the proximate cause of theinjury, then the benefits or compensation otherwise payable under thischapter for death or disability shall be forfeited.

(3) The voluntary use of alcohol to the percentage of blood alcoholsufficient under Missouri law to constitute legal intoxication shall giverise to a rebuttable presumption that the voluntary use of alcohol undersuch circumstances was the proximate cause of the injury. A preponderanceof the evidence standard shall apply to rebut such presumption. Anemployee's refusal to take a test for alcohol or a nonprescribed controlledsubstance, as defined by section 195.010, RSMo, at the request of theemployer shall result in the forfeiture of benefits under this chapter ifthe employer had sufficient cause to suspect use of alcohol or anonprescribed controlled substance by the claimant or if the employer'spolicy clearly authorizes post-injury testing.

7. Where the employee's participation in a recreational activity orprogram is the prevailing cause of the injury, benefits or compensationotherwise payable under this chapter for death or disability shall beforfeited regardless that the employer may have promoted, sponsored orsupported the recreational activity or program, expressly or impliedly, inwhole or in part. The forfeiture of benefits or compensation shall notapply when:

(1) The employee was directly ordered by the employer to participatein such recreational activity or program;

(2) The employee was paid wages or travel expenses whileparticipating in such recreational activity or program; or

(3) The injury from such recreational activity or program occurs onthe employer's premises due to an unsafe condition and the employer hadactual knowledge of the employee's participation in the recreationalactivity or program and of the unsafe condition of the premises and failedto either curtail the recreational activity or program or cure the unsafecondition.

8. Mental injury resulting from work-related stress does not ariseout of and in the course of the employment, unless it is demonstrated thatthe stress is work related and was extraordinary and unusual. The amountof work stress shall be measured by objective standards and actual events.

9. A mental injury is not considered to arise out of and in thecourse of the employment if it resulted from any disciplinary action, workevaluation, job transfer, layoff, demotion, termination or any similaraction taken in good faith by the employer.

10. The ability of a firefighter to receive benefits forpsychological stress under section 287.067 shall not be diminished by theprovisions of subsections 8 and 9 of this section.

(RSMo 1939 § 3691, A.L. 1965 p. 397, A.L. 1969 H.B. 367, A.L. 1974 S.B. 417, A.L. 1978 H.B. 1260, A.L. 1990 S.B. 751, A.L. 1992 H.B. 975, A.L. 2005 S.B. 1 & 130)

Prior revision: 1929 § 3301

(1975) Held that slowly pouring concrete from a bucket held extended from the body was an unusual strain which caused a heart attack and was an accident within the meaning of this section. Smith v. Plaster (A.), 518 S.W.2d 692.

(1975) Shooting of laundry deliveryman by berserk gunman while in course of making a delivery is a compensable accident. Allen v. Dorothy's Laundry and Dry Cleaning Co. (A.), 523 S.W.2d 874.

(1975) Held that acid thrown in service station employee's face by husband who believed there was improper familiarity between victim and acid thrower's wife was not an assault which would qualify as a compensable "accident". Freeman v. Callow (A.), 525 S.W.2d 371.

Arising Out of and in the Course of Employment

(1972) Employee who was struck by lightning while standing in flat open field as tallest grounded object was exposed to greater hazard than general public, thus accident arose out of decedent's employment. Reich v. A. Reich and Sons Gardens, Inc. (Mo.), 485 S.W.2d 133.

(1974) Employee injured on parkway of public street while returning to work from place where she took her meal was not compensable. Spacy v. Stout's Feed and Supply (A.), 512 S.W.2d 849.

(1998) Injuries which occur while traveling to and from medical treatment for prior compensation injuries do not arise out of and in the course of employment and, as such, are not compensable. Bear v. Anson Implement Inc., 976 S.W.2d 553 (W.D.Mo.), transfer denied.

(1998) The Division of Workers' Compensation has exclusive subject matter jurisdiction over claims of medical malpractice for post-accident injuries alleged to be caused by treatment of an injury falling under the purview of workers' compensation law because such claims are sufficiently work-related to arise out of and in the course of employment. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (W.D.Mo.).

Death

(2002) Three hundred week requirement of subsection 4 does not violate equal protection; requirement is rationally related to legitimate state interest of having such claims adjudicated while causative factors could be reasonably determined. Greenlee v. Dukes Plastering Service, 75 S.W.3d 273 (Mo.banc).

Exclusive Remedy

(1980) Exclusive remedy of parents of deceased worker for compensation for alleged wrongful death of worker in employment accident under Workers' Compensation Law; overruling Miller v. Hotel Savoy Co. (A.), 68 S.W.2d 929. Combs v. City of Maryville (A.), 609 S.W.2d 475.

(1984) Exclusive remedy provision of Workers' Compensation Act is not a bar to a common law action against a parent or subsidiary corporation of the plaintiff's immediate employer. Boswell v. May Centers, Inc. (Mo.App.), 669 S.W.2d 585.

(2002) Allegation of negligent driving by a co-employee is no more than allegation of a breach of the duty to maintain a safe working environment, and thus exclusive remedy provisions control. State ex rel. Taylor v. Wallace, 73 S.W.3d 620 (Mo.banc).

(2002) Section's exclusive liability provisions do not apply to provisions of Overhead Power Line Safety Act, sections 319.075 to 319.090, RSMo. State ex rel. Safety Roofing Systems, Inc. v. Crawford, 86 S.W.3d 488 (Mo.App.S.D.).

Third Party Actions

(1985) An employer is not subject to third-party actions for contribution or assessment of fault with respect to an employee's accident covered under the Workers' Compensation Act. Redford v. R.A.F., Corp., 615 F.Supp. 547 (D.C.Mo.).

(1987) While assaults arising from personal quarrels are not compensable under Workers' Compensation, unprovoked assaults are compensable. Olivio v. TLI, Inc., 731 S.W.2d 395 (Mo.App.).

(1989) Female employee precluded from bringing action against employer for its alleged negligence in retaining supervisor and in failing to maintain safe work place, because alleged sexual assault occurred when employee was working overtime and was discussing business over a drink in supervisor's office and was incident arising "in the course of" and "out of" female employee's employment. (Mo.App.) Crofts v. Harrison, 772 S.W.2d 901.

(1989) Where contract required subcontractor to defend and indemnify general contractor in claims arising out of performance of the contract, workers' compensation statute does not shield subcontractor from liability for breach of independent contractual duty to indemnify general contractor. U.S. v. Fru-Con Construction Corp. (8th Cir.) 890 F.2d 1046.

(1991) Workers'' compensation statutes do not bar an action by a third party for indemnity against an employer when employer breaches an independent duty or obligation to third party. Independent duty of due care is created when employer participates in design of machinery in intrusive or specific way and constitutes an exception to the exclusive remedy of workers'' compensation statutes. Coello v. Tug Manufacturing Corp., 756 F.Supp. (W.D.Mo.).

(1996) Claimant must show that injury arises out of and in the course of employment in order to recover. Recovery is allowed only where a condition unique to or exacerbated by the workplace exists and contributes to cause the injury. Abel v. Mike Russell's Standard Service, 924 S.W.2d 502 (Mo.banc).

(1996) Statute's exclusivity provision does not bar recovery of damages under the Missouri Human Rights Act. Varner v. National Super Markets, Inc., 94 F.3d 1209 (8th Cir.).