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ARTICLES:

Missouri Workers Comp Retaliation

Discrimination for exercising a Workers Compensation Right, AND
The problem of “exclusive causal connection” or “exclusive cause”

This article focuses on the special problems associated with Workers Comp Retaliation cases in Missouri. Some of the info in this article originally appeared in my more general Retaliation article, but I thought it best to separate Workers Comp Retaliation into it’s own article for extra clarity, since I get so many calls about this type of retaliation.

See the following articles for more about Retaliation and Discrimination and Wrongful Termination:

By the way, if you haven’t filed your Comp claim yet, did you know that I can assist you? Please consider taking a look at Tim’s Workers Comp-related services.

Workers Comp Retaliation cases suffer under an “exclusive causality” standard of proof that greatly discourages lawsuits, and therefore encourages employers to retaliate, because they know they can get away with it most of the time.

Let’s look for just a moment at the lower standard of proof that will probably apply in a traditional retaliation case arising under the common employment discrimination laws

If your race discrimination complaint was a mere “motivating factor” in the retaliation (even just one of several motivating factors), your employer has violated the law. So your burden (under the discrimination laws) might be to show “motivating factor.” The employer might have been “motivated” to fire you because of certain performance or attendance problems, combined with a dislike of you that was due to your race discrimination complaint. In combination, all those reasons got you fired. You win a small victory if you can show that the race discrimination complaint helped motivate the employer to fire you (but your damage award might be restricted somewhat).

If you can go a little further and prove that the retaliation was a direct result of your discrimination complaint (the major or main reason even though the employer had several reasons to want to be rid of you), you can win more damages. You don’t have to prove that the race discrimination complaint was the “exclusive cause” of your termination.

I want to emphasize that the above-mentioned “lower” standards of proof are not to be confused with “easy.” Statistically, most discrimination and retaliation cases lose in court. It’s not easy to prove that your termination resulted from retaliation or discrimination, whether the standard is “motivating factor” or “direct result.” Typically, the employer will dig up a lot of evidence to try to justify its decision to fire you, such as evidence of possibly significant performance problems, excessive tardiness or absenteeism, resume fraud, personality conflicts, etc.

Now let’s look at the different standard for Workers Comp Retaliation cases in Missouri. There is a good chance that the judge will make you prove an “exclusive causal connection” between the exercise of a workers comp right and the retaliation. It’s not enough that you can prove a “direct result”; you must prove “exclusive causality.”

Don’t bother thinking that “exclusive causal connection” is the same as saying “direct result.” It’s not. In 1999, the Missouri Supreme Court ruled on that issue in the Crabtree case. In the Crabtree case, the employee won the case after successfully proving to a jury that the retaliation was the “direct result” of exercising a workers compensation right. On appeal, the Missouri Supreme Court reversed the jury verdict. The Court said the employee must prove an exclusive causal connection.

The Workers Comp Retaliation law, RSMo 287.780, seems to be a typically broadly-worded, worker-friendly, anti-discrimination law and does not mention anything about an exclusive cause requirement, yet the courts interpret it as requiring exclusive causality. Here’s the law:

287.780. No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer.

By imposing an exclusive causality requirement onto RSMo 287.780, the courts have inadvertently torn the heart out of the only protection the workers of Missouri have against being punished for filing workers comp claims or exercising any of their workers comp rights. The State of Missouri does not enforce the Workers Comp Retaliation law. If you are retaliated against, no one will help you, unless you can get a lawyer. But lawyers are not too excited about doing your workers comp retaliation case on contingency fee, because we have to prove an “exclusive causal connection.”

So what does it mean to say you must prove an “exclusive causal connection”?

Lawyers don’t really know for sure how rigidly a particular judge will follow the logical meaning of the phrase “exclusive causal connection.” We know that the words “exclusive causal connection” (or “exclusive cause”) seem to indicate a higher standard than “direct result.” But we also know that nearly nothing of this earth has an exclusive cause when you stop and really think about it. It seems that just about everything in the world is a web of causes, some major and some minor.

Just about everything seems arguably a result of several causes, some major and some minor. Here are a few examples: The speed of a baseball is mainly a result of the force of the throw, but also the humidity, the wind, the height of the stitches on the baseball. An iceberg sinks a ship mainly because the iceberg tears a hole in the hull, but also because the captain was going too fast, the lookout may have been asleep, and the hull rivets were poorly made and were too brittle. An outbreak of contagious disease in your body is the result of several causes, mainly microbial organisms, but also genetics, the strength of your immune system, and environmental factors, and when the factors intersect you get a disease. They say we are exposed to TB all the time, but few of us get TB unless our immune system is compromised. Some people exposed to AIDS never get the disease, so the AIDS virus is not the exclusive cause of AIDS.

In the face of the exclusive causality requirement, the question is how much of a web of causality will the judge allow before throwing the case out of court?

EXAMPLE: Here’s a relatively easy case under “exclusive causality.” An employee has been receiving very good reviews, no deficiencies. No counseling. No absences. No concerns at all. The employee files a comp claim. The employer promptly walks up to the employee and says: “We don’t like people who file comp claims. You’re fired.” In court, the employer argues that the manager was just joking inappropriately when he said “we don’t like people who file comp claims” and that the real reason for the termination was something else (not documented anywhere). Based on the facts as above, the court is likely to let the jury decide. The employee can win this case, especially if the jury believes the manager was not joking.

But in the real world employers aren’t as stupid as that manager. They don’t tell you they are violating the law. So in the real world, every case is much more difficult than the one above.

In court, the employer will always be able to argue that there were multiple reasons for the termination, even if the other reasons were simply “personality conflicts.” If no other reasons can be easily found, the employer can manufacture some. The next section discusses how the employer can manufacture other reasons if none exist. And by the way, many employers automatically begin to manufacture reasons for termination immediately upon you filing a workers comp claim (or engaging in any other form of protected activity as discussed in my retaliation article).

Here’s a few examples to illustrate how employers can manufacture “other reasons for the termination” that may defeat “exclusive causality.” This is how the game is played. Expect the employer to play this game in any discrimination or retaliation case. In cases where the “exclusive causality” requirement is in effect, the employee will have a tougher time dealing with these manufactured reasons than if the “direct result” or “motivating factor” standards were used instead.

An employer who wants to retaliate because you filed a workers comp claim, or engaged in any other form of protected activity tends to wait. The employer might want to fire you now, but they wait. They build a case against you. They manufacture genuine-sounding reasons for your termination. Those manufactured reasons may, or may not, destroy your case. If the standard were the same as for the traditional discrimination laws, you would have a theoretically easier time punching through the employer’s sham other reasons and get to the “real reason” that motivated your termination.

But under “exclusive causality,” the judge might not be as willing to let you punch through the sham reasons and get to the real reason for your termination. The judge might decide that you don’t have enough evidence of “exclusive causality” to let a jury decide the case.

Creating reasons for the termination

The employer might put more pressure on you to force mistakes. They overly-criticize your work, using discretionary criteria. They wait for you to make a mistake and write you up, where they would probably have overlooked the mistake in the past. Then, when they’ve got you documented well enough, they fire you for all the documented reasons. You might never have had a chance – The decision to terminate you might have been made at the time of your protected activity (good luck proving it!) The rest of the time was just the employer going through the motions to generate a legal defense in court.

Many employers automatically investigate (and watch) employees who have filed comp claims, looking for reasons to fire the employee. When a worker files a comp claim, many employers go through the employee’s personnel file and check his references and asks for transcripts from schools, etc, looking to prove resume fraud. They didn’t care about resume fraud before. In fact, they might even avoid checking backgrounds at time of hire, because resume fraud is such a good excuse to fire people when the time is right. Now they’re looking for excuses to fire the worker who filed the comp claim. They “uncover” the resume fraud, and fire the worker. This is discrimination, but under “exclusive causality” many if not most courts will let them get away with it.

Many employers falsely claim “no light duty” (the law does not require light duty) and refuse to let the injured worker come back until “completely healed.” Then they fire the worker when the sick leave is exhausted. Any worker could find themselves in this predicament if the employer wants to be rid of them.

Those are just a few examples of how the game is played. Unfortunately for workers, the “exclusive causality” requirement places on them a seemingly very high standard of proof to try to meet, a standard that discourages meritorious lawsuits and encourages employers to retaliate.

Accordingly, most people who think they have retaliation cases under the Workers Comp Retaliation theories can’t find a contingency fee lawyer. The cases lose too often.

Speculation about the main causes of employers’ desire
to retaliate for the filing of workers comp claims.
These speculations are forms of illegal discrimination,
but it’s tough to prove it in Missouri.

I have spoken to many people who believe their workers comp claims got them fired. From talking to so many people, I have seen certain trends emerge.

Many employers want to send a message to employees that workers comp is not going to be a day at the beach, and they want everyone to know that it’s risky to file claims, and that the employer is not an easy mark.

In many work environments, boneheaded bosses make their own diagnoses. The bonehead can’t feel your pain, and can’t see your injuries (back, neck, arm, wrist), and so they think you must be OK, and that you’re lying to cheat the system. So they commence to punishing you, to discourage your co-workers from trying to cheat the system. This attitude flows down from the top, where top management teaches the lower level bosses to be skeptical of any injuries unless there are broken bones and blood.

REFORMS NEEDED

  • The “exclusive causality” standard of proof needs to be changed.
  • Required minimum standards of medical leave for work-related injuries.
  • Required minimum standards for giving light duty for work related injuries.
  • Maybe establish an appeals tribunal for retaliation allegedly arising from workers comp claims, like an administrative hearing similar to the unemployment appeal process.
  • The workers comp discrimination statute, RSMo 287.780, needs to be amended to make it more like the traditional discrimination laws, which will provide lawyers with somewhat more incentive to assist people.
  • Consider making workers comp retaliation a form of illegal discrimination under the Missouri Human Rights Act, like retaliation for complaining of discrimination based on race, gender, disability, etc…

Please see my retaliation article for more info about retaliation cases generally, including some mention of remedies and damages.

And, if you or someone you know needs to file a Workers Comp claim, maybe I can help. Take a look at Tim’s Workers Comp-related services.

Article written by | Tim Willoughby


***** END OF ARTICLE *****

Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

Missouri Bar Website (To view the directory of lawyers).

Phil Willoughby, Attorney
Licensed in Missouri and Kansas

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Kansas City, MO 64153
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