Rodriguez v. Civil Service Commission, 40532

• Decision Date: 15 May 1979
• Docket Number: No. 40532,40532
• Citation: 582 S.W.2d 354
• Parties: Sheila RODRIGUEZ, Appellant, v. CIVIL SERVICE COMMISSION, Respondent.
• Court: Missouri Court of Appeals

Page 354

582 S.W.2d 354

Sheila RODRIGUEZ, Appellant, v. CIVIL SERVICE COMMISSION, Respondent.

No. 40532.

Missouri Court of Appeals, Eastern District, Division Three.

May 15, 1979.

John R. Igoe, Leonard P. Cervantes, St. Louis, for appellant.

Joseph R. Niemann, St. Louis, for respondent.

CRIST, Judge.

This appeal involves the dismissal of an employee of the City of St. Louis. The employee-appellant sought review of her discharge by the Civil Service Commission which upheld her dismissal because she was "unwilling or unable to perform" her work. The circuit court sustained the decision of the Civil Service Commission and this appeal followed. We affirm.

On January 18, 1975, while working in a typist-clerk position for the Community Development Agency, appellant sustained a work-related knee injury compensable under the Missouri Workmen's Compensation laws. For a period directly after her injury, appellant attended work irregularly until she used all but eight hours of her vacation time to receive pay for her absences. Thereafter, from March 3, 1975 to March 31, 1975, appellant was away from work without pay on a leave of absence. Appellant worked from March 31, 1975 to May 19, 1975 at which time she was again granted a leave of absence without pay until November 17, 1975 to enable her to have an operation on her knee.

On November 17, 1975, appellant's physician granted her a release and she returned to work. However, on the next day she left work early to take her son to an emergency dental appointment. At that time, her knee caused her so much pain that she did not return to work for the rest of the week. On November 24, 1975, the following Monday, appellant attempted to return to work but while enroute, suffered injury in an automobile accident. Thereafter, she was again under doctor supervision.

In December, 1975, upon the request of the Director of the Community Development Agency, appellant submitted two doctor's statements which recommended that appellant not return to work "for an undetermined time" and that she was not "sufficiently recovered." On January 12, 1976, the Director of the Community Development Agency terminated appellant's employment.

In April of 1975, appellant had filed a Workmen's Compensation claim for her knee injury. On October 5, 1976, a settlement was reached. The city paid the appellant temporary total disability for forty weeks as well as medical bills totaling $1,540.20 and a lump sum award of $5,800.00.

On appeal, appellant claims the trial court erred in affirming the discharge decision of the Civil Service Commission because the decision "denied appellant the free exercise of her rights under the Workmen's Compensation Statutes of the State of Missouri." The rights which appellant claims she is unable to "freely exercise" are those under § 287.190, RSMo Supp.1975 which guarantee her compensation for a maximum of forty weeks for a "healing period." Appellant argues that because the agency dismissed her before the forty week healing period had run, that she was discriminatorily discharged for exercising her rights under the Workmen's Compensation laws in violation of § 287.780, RSMo Supp.1975. In essence, appellant maintains that § 287.190 creates in employees an absolute right to retain their jobs for forty weeks after a work-related injury so long as they are unable to return to work.

We find no merit in appellant's contention, Section 287.190 provides, in part:

In addition to the compensation in this section provided for all permanent partial disabilities, whether scheduled or unscheduled, the employer shall pay to the employee for a healing period, a period of not to exceed forty weeks of that compensation allowed for temporary total disability under Section 287.170. The healing...