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MO Workers Comp Update – Industrial Commission Strengthens Post-Injury Misconduct Defense


The Industrial Commission issued an award this week in Paxton v. Little Sisters of the Poor ( Click HERE to read the entire decision). In doing so, the Commission strengthened the ability for Employers/Insurers to assert the Post-Injury Misconduct Defense and avoid the payment of TTD and/or TPD benefits to a claimant following the termination of employment due to misconduct.


Claimant worked as a nurse in a senior care facility. She suffered a compensable accident and came back to work on light-duty status. While working light duty, claimant mistakenly allowed controlled mediations to be left unlocked and unsupervised while she watched television with patients in an adjacent room in violation of company policy. Her employment was then terminated.

Employer asserted that it did NOT owe any amounts for TTD/TPD benefits following the termination of employment under Section 287.170.4, which states:

“If the employee is terminated from post-injury employment based upon the employee’s post-injury misconduct, neither temporary total disability nor temporary partial disability benefits under this section or section 287.180 are payable. As used in this section, the phrase “post-injury misconduct” shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician.”

The Administrative Law Judge ruled that the misconduct defense did not apply because the misconduct was accidental, rather than intentional. Further, the ALJ awarded TTD/TPD benefits after the claimant’s employment was terminated.


On appeal, the Industrial Commission reversed the ALJ’s award pertaining to the misconduct defense, holding that the intention related to the misconduct was irrelevant:

“Employee violated employer’s known policy as well as state safety regulations when she left a cart with controlled medications unlocked and out of her sight while she watched television with patients in an adjacent room. Irrespective of whether employee actually intended to harm employer’s residents or whether any harm resulted from her actions we find that employee’s irresponsible, dangerous, unlawful, admitted behavior constituted work connected misconduct pursuant to§ 287.170.4 RSMo.”

Based on this analysis, the Commission held that the Employer/Insurer did NOT owe any TTD/TPD benefits following the termination of employment.


If the claimant commits misconduct while working in a light duty capacity, regardless of whether that misconduct is intentional or unintentional, the Employer/Insurer will not owe TTD/TPD benefits following the termination of employment if the Employer can demonstrate that the claimant violated company policies AND that the misconduct was not based on absence from the workplace due to the work injury.

If you have any questions regarding this decision or if you would like to discuss how this decision might apply to any specific case you are currently handling, please let me know.