(In Section 287.120, the reasons for reducing or increasing benefits are set forth in detail.)
In Inmon v WJT, Inc., (LIRC) 2/28/02, the employer asserted 15% penalty for decedents failure to wear a seat belt, all parties agreeing that it was available to him and that more likely than not he would have survived had he worn it. Penalty denied, because under Section 287.120.5 RSMo., the employer must first establish the safety rule and policy, and only then can the issue be raised by the insurer. Further, although use of a safety belt is mandatory under the State statute, no employer is obligated to adopt a safety rule covering the usage of seat belts. Because they declined to impose a safety rule concerning the use of seat belts, the evidence was insufficient to impose a 15% penalty.
(A word to the wise on not using seat belts, set up a safety policy, post it, show actual notice on the part of the employee).
In Crowell v Brad Hawkins, 68 S.W.3d 432 (Mo.App. E.D. 2001), the employer denied TTD and medical, claimant filed for hardship. Just before the hearing the employer paid all claimed benefits. Claimant's attorney raised the issue of "cost of recovery" and the appellate court held that the employer in fact had "confessed judgement" on the claim for TTD and medical, and awarded attorney's fees, modifying the Commission which denied the request.
(Note: if you deny benefits at a hardship setting and lose or even pay them before, you stand a chance of getting hit with claimant's attorney?s fees, it's cost of recovery, including medical exams, depositions, medical copies, etc.)
In Hand v Eastern Electric, (LIRC), 1/30/01, The employer stopped PTD payments without notice, and court ordered sanctions under .203 including costs and attorney's fees.
In Brock Meyer v Stiefferman, 34 S.W.3d. 236,(Mo.App. E.D. 2000). Employer entitled to safety policy credit for no-drinking even if not posted when claimant had actual notice.
In Graham v Mo. Highway Transportation Dept., (LIRC), 2000, employer not entitled to safety credit when no evidence conspicuously posted or willful failure to follow.
In Loyd v Ozark Electric Power Cooperative, Inc., 4 S.W.3d 579 (Mo.App. S.D. 1999), a 15% penalty was applied to the employer's failure to guard, i.e., to "install a guard or warning on dangerous machinery in all business establishments in the State of Missouri." An allegation does not have to be specifically pled in the claim, particularly where an employer is aware of the condition. A transformer was held to be a "machine", the employer was held to be the "business establishment". This is a broad interpretation of the application of the penalty-guard statute.