STLToday and other media are reporting that a legislator was injured by a fellow member of the Missouri House of Representatives while tussling at a private club recently. As might be expected, the circumstances surrounding the event are somewhat vague.
Naturally, the first thought here at www.KorteLaw.com was: is this a workers’ compensation case? Someone less immersed in what we like to refer to as “the World of Workers’ Comp” (as opposed, say, to the real world), might easily dismiss this question. Upon further review, however, the facts that are known reveal a laundry list of issues that could propel such a claim all the way to the Missouri Supreme Court.
The threshold question that presents itself first is: Are elected state legislators employees of the State of Missouri? Oddly enough, there appear to be no appellate opinions on this question, and certainly no recent ones. Likewise, a quick glance at the Missouri Revised Statutes indicates no specific statutory provisions specifically addressing this issue. Interestingly enough, however, The Workers’ Compensation Law does, in RSMo §287.090, exclude a number of employments from work comp coverage, but does not exclude legislators.
So, are legislators employees? Well, they aren’t hired by the State, cannot be fired by the State, and most Capitol observers would heartily agree that they cannot be controlled by the State, as this incident amply demonstrates. However, they are paid salaries and given expense accounts and pensions, get W-2s and have taxes deducted from their paychecks. They (usually) do the work of the State, subject to the rules, regulations, policies and procedures established by their fellow legislators acting on behalf of the State. As unpredictable as their actions might be from time to time, they don’t neatly shoehorn into the status of independent contractors, as that term is usually applied in Missouri workers’ compensation law.
The call here, by a narrow margin is: YES , legislators are employees of the State of Missouri.
Now, what about the event itself? One of the legislators involved in the fracas described it as an “accident” due to “joking around”. Prior to 2005 legislative amendments to RSMo Chapter 287, an accidental injury from an event like this would have been called “horseplay”. Back then, horseplay was compensable if an employer knew about and tolerated similar prior events. There is a long and rich history of events like this between legislators almost since the entry of the State of Missouri into the Union. It would be difficult for the State of Missouri to deny awareness of legislators’ misbehaviors.
However, The Workers’ Compensation Law was substantially amended in 2005, and it is becoming increasingly clear that prior case law assigning cases to categories such as “horseplay” are no longer determinative. In the 2017 case of Hedrick v. Big O Tires, 522 S.W.3d 919, the Southern District of the Missouri Court of Appeals declined to address the horseplay issue, and, instead, ruled that an employee’s voluntary choice to engage in admittedly dangerous horseplay by lighting a flammable substance on fire while it was being held by a co-worker was not an accident.
If this event not an accident, pre-2005 law would have considered it an assault. Back then, assaults fell into three categories: work-related, personal and “neutral’. Personal assaults were not compensable.“Neutral” assaults, arising from unknown motives, were compensable, as were work-related assaults.
But what is work-related? If the legislators were arguing about legislation, that would seem to be work-related. But what if they were arguing about politics? Maybe, but not so much. What is they were arguing about each of them wanting to run for Speaker of the House? Probably work-related. But what if they were arguing about Better Together, a statewide initiative that is beyond the legislative agenda? The legal answer is: it depends. Or: it may not matter.
There have been no assault cases decided by Missouri courts of appeals since those 2005 amendments. Plenty of other cases have interpreted the 2005 amendments, however, to boil down to whether the injury occurred because the victim was at work instead of just while he or she was at work.
But were these legislators “at work’? They were at a private club, not in the Capitol building. The House was not in session at the time. Although the legislators who amended The Law in 2005 most likely wanted to restrict the compensability of after-hours, off-premises injuries, courts have subsequently ruled on these questions on almost a case-by-case basis.
The best guess here is that the old categories of assault cases may find their way back into the calculation of the compensability of these types of events, with work-related assaults compensable, personal assaults not compensable, and “neutral” or unexplained assaults depending on the circumstances: assaults by co-employees compensable “because” they happen “at work” and those by strangers not compensable since they only occurred “while” at work.
If it is an assault, pre-2005 law prohibited the aggressor from recovering for his or her own injuries. So, who started it? That would make for some, um, interesting depositions.
What if the claimant was intoxicated? If so, the Missouri workers’ comp benefits that he is entitled to receive are subject to a reduction by application of a penalty, unless his intoxication caused his injuries, in which case all benefits are forfeited.
It is unlikely that either legislator will file a MO work comp claim, but these are the type of conundrums that keep us here at The Korte Law Firm interested and engaged here in The World of Workers’ Comp.