                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-2914
                                ________________

Local 2379, United Automobile            *
Aerospace and Agricultural               *
Implement Workers of America,            *
                                         *     Appeal from the United States
             Plaintiff - Appellee,       *     District Court for the
                                         *     Western District of Missouri.
      v.                                 *
                                         *
ABB, Inc.,                               *

             Defendant - Appellant.

                                ________________

                             Submitted: April 14, 2005
                                 Filed: June 21, 2005
                               ________________

Before MELLOY, COLLOTON, and GRUENDER, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

       ABB, Inc. (“ABB”) appeals from the district court’s grant of summary
judgment in favor of Local 2379 of the United Automobile, Aerospace and
Agricultural Implement Workers of America (“the Local”). We hold that the
Missouri Workers’ Compensation Law (“MWCL”) does not prohibit an employer
from requiring an injured employee to use paid-leave benefits, rather than unpaid
leave, to attend follow-up medical treatment scheduled during work hours. For the
reasons discussed below, we reverse the judgment of the district court and remand for
entry of summary judgment in favor of ABB.

I.    BACKGROUND

      The Local is the exclusive bargaining agent for the hourly production and
maintenance workers employed at ABB’s Jefferson City, Missouri plant.
Accordingly, a collective bargaining agreement (“CBA”) governs the terms and
conditions of employment for the plant’s hourly workforce. For this appeal, the
pertinent portion of the CBA is Article IX, Section 3, which provides in relevant part:

      [ABB] and [the Local] agree that all laws of the State of Missouri shall
      govern regarding the administration of industrial injury as required.
      [ABB], [the Local], and the employees will be subject to the laws set
      forth and any State legislation that is modified, changed, amended and
      enacted will be applied as required by laws in effect or as they become
      effective.

App. 83-84.

       Before entering into the CBA, ABB maintained a practice of paying its
employees their full salary for time away from work to receive follow-up medical
treatment related to a workplace injury. Employees were not required to use paid-
leave benefits, defined in the CBA as paid vacation or personal business leave, and
would not be charged with an absenteeism occurrence. Believing its practice went
beyond the requirements of Missouri law, ABB unilaterally chose to adopt a policy
requiring injured employees to use paid-leave benefits to cover the time away from
work seeking follow-up medical care. The Local immediately filed grievances on
behalf of a number of employees, protesting the required use of paid-leave benefits




                                          -2-
and the imposition of unexcused occurrences1 for failure to do so. To resolve the
grievances, ABB and the Local eventually entered into a supplemental agreement to
the CBA, which included an “unexcused occurrences” provision and an “exception”
provision:

      [ABB] will no longer charge represented employees with an unexcused
      occurrence for absences due to disabilities, whether work-related (workers’
      compensation) or nonwork-related (A&S or short term disability). Nor will
      any previously recorded occurrences for disabilities be used in any future
      attendance-related discipline steps.

      ...

      An exception to this Agreement is that any represented employee who refuses
      to use either vacation and/or personal business (PB) days for post injury/illness
      doctors’ and therapy visits during work hours will be charged an unexcused
      occurrence for the time away from work.

Agreement Between ABB-Jefferson City and UAW Local 2379 (“Supplemental
Agreement”).2




      1
       The Local explained the significance of “unexcused occurrences” as follows:
“Under [ABB’s] attendance policy, disciplinary action, graduating to discharge, is
taken against hourly employees who receive four or more [unexcused] occurrences
within a twelve month period.”
      2
      It is apparently undisputed that no employee has ever been charged with an
unexcused occurrence for failing to use paid-leave benefits when taking time away
from work to receive follow-up medical care. ABB’s practice has been to deduct
automatically the time from the employee’s paid leave. If an injured employee has
exhausted his paid-leave benefits, ABB’s practice apparently is to grant an excused
absence without pay. Our opinion addresses both the policy embodied in the
Supplemental Agreement and ABB’s actual practice under that agreement.
                                         -3-
       Despite the negotiated agreement, the Local filed suit against ABB in Missouri
state court. The complaint sought a declaratory judgment that the exception provision
is contrary to Missouri law because it impermissibly encumbers an injured
employee’s statutory right to medical treatment. On May 21, 2003, the case was
properly removed to the United States District Court for the Western District of
Missouri. At the time of removal, the parties were of diverse citizenship and the
amount in controversy was greater than $75,000.00. See James Neff Kramper Family
Farm P’ship v. IBP, Inc., 393 F.3d 828, 834 (8th Cir. 2005).

       ABB and the Local filed cross-motions for summary judgment. Importantly,
the Local did not argue that employees are entitled to receive wages without using
paid-leave benefits while missing work to attend follow-up medical care. Rather, the
Local’s argument was that the MWCL mandates that those employees should be able
to choose whether to use paid-leave benefits or excused leave without pay for the
follow-up medical visits. The use of excused leave without pay would allow them
flexibility to save their paid-leave benefits for future use. ABB argued rather
pointedly, “If an employer can legally deny salary to an employee [attending follow-
up medical care], it is absurd to claim an employee is illegally denied compensation
by paying that employee for [that time].”

       The district court denied ABB’s motion for summary judgment and granted in
part and denied in part the Local’s motion for summary judgment.3 The district court
then issued judgment in favor of the Local, declaring on two alternative grounds that


      3
        The Local argued on summary judgment that the allegedly illegal exception
provision should be severed from the Supplemental Agreement. The district court,
concluding that the unexcused-occurrences provision was indelibly intertwined with
the exception provision, denied the Local’s motion for summary judgment insofar as
it sought to sever the illegal provision from the Supplemental Agreement and enforce
the remainder. Instead, the district court declared the entire Supplemental Agreement
illegal and unenforceable.
                                         -4-
the MWCL prohibits ABB’s practice of requiring an employee to use paid-leave
benefits, rather than unpaid leave, when an employee must leave work to obtain
follow-up care for a job-related injury.4 First, the district court held that ABB’s
policy violates Mo. Rev. Stat. § 287.140.1 because it denies an injured employee his
regular compensation. Alternatively, the district court held that ABB’s policy placed
an impermissible qualification on an injured employee’s exercise of the statutory right
to medical care under the MWCL. ABB appeals from the district court’s grant of
partial summary judgment.

II.   DISCUSSION

      We review de novo a district court’s grant of summary judgment, applying the
same standard as the district court. Donovan v. Harrah’s Maryland Heights Corp.,
289 F.3d 527, 528-29 (8th Cir. 2002). Both parties agree that the facts are not in
dispute. Therefore, we review de novo the district court’s legal conclusions
concerning the proper interpretation of the MWCL. Gosnell v. Mullenix, 11 F.3d 780,
781 (8th Cir. 1993) (“We review de novo the district court’s determinations of state
law.”).

      One of the primary purposes of the MWCL “is to ameliorate, in the interest of
working people and the public welfare, losses sustained from accidental injuries
received by the working person in the course of employment.” City of St. Louis v.


      4
        The Missouri General Assembly recently amended the MWCL by adding
subsection 14 to § 287.140. See S.B. 1, 93rd Gen. Assem., 1st Reg. Sess. (Mo.
2005). The amendment provides, “The employer may allow or require an employee
to use any of the employee’s accumulated paid leave, personal leave, or medical or
sick leave to attend to medical treatment, physical rehabilitation, or medical
evaluations during work time. The intent of this subsection is to specifically
supercede and abrogate any case law that contradicts the express language of this
section.” This amendment becomes effective August 28, 2005.
                                          -5-
Grimes, 630 S.W.2d 82, 85 (Mo. banc. 1982) (quoting Wengler v. Druggists Mut. Ins.
Co., 583 S.W.2d 162, 164 (Mo. banc 1979), rev’d on other grounds, 446 U.S. 142
(1980)). To this end, the MWCL provides monetary compensation to an employee
for wages lost as a result of an injury suffered during work. Under the relevant
statutes, “the weekly compensation shall be an amount equal to sixty-six and
two-thirds percent of the injured employee’s average weekly earnings[.]” Mo. Rev.
Stat. § 287.170.1(1); see generally Mo. Rev. Stat. §§ 287.170, 287.180, 287.190. The
MWCL also imposes on employers an unqualified and absolute duty to provide
medical care for employees injured during work. Wiley v. Shank & Flattery, Inc., 848
S.W.2d 2, 4 (Mo. Ct. App. 1992). The operative section of the statute provides: “In
addition to all other compensation, the employee shall receive and the employer shall
provide such medical, surgical, chiropractic, and hospital treatment, including
nursing, custodial, ambulance and medicines, as may reasonably be required after the
injury or disability, to cure and relieve from the effects of the injury.” Mo. Rev. Stat.
§ 287.140.1.

       In granting partial summary judgment to the Local, the district court held that
the phrase “in addition to all other compensation” in § 287.140.1 was ambiguous
because “compensation” was not explicitly defined in the MWCL. Therefore, the
district court resorted to the dictionary definition of compensation. Merriam-Webster
Dictionary, the dictionary used by the district court, defines compensation as “a
recompense or reward for some loss or service.” Local 2379, United Auto.,
Aerospace and Agric. Implement Workers of Am. v. ABB, Inc., No. 03-4109-CV, slip
op. at 5 (W.D. Mo. July 29, 2004). Placed in the context of employment, the district
court held that compensation includes, “at a minimum, salary and fringe benefits,
such as sick leave and vacation.” Id. at 6. Consequently, the district court reasoned
that § 287.140.1 prohibits ABB from requiring employees injured on the job to spend
their “compensation,” in the form of paid-leave benefits, in order to receive the
statutorily mandated follow-up medical care.



                                           -6-
       We disagree with the district court’s reasoning that the term “compensation”
as used in the MWCL is ambiguous. Rather, we believe that § 287.140.1 must be
read in the context of the entire MWCL. See Marie v. Standard Steel Works, 319
S.W.2d 871, 876 (Mo. banc 1959) (“[I]n determining the intent and meaning of [a
term] used in the [MWCL], the words must be considered in their context and
sections of the statutes in pari materia, as well as cognate sections, must be
considered in order to arrive at the true meaning and scope of the words.”). One of
the primary purposes of the MWCL is to provide workers monetary compensation for
wages lost as a result of a workplace injury. In addition to this compensation for lost
wages, § 287.140.1 also imposes an unqualified and absolute duty on the employer
to provide medical care for the injured worker–in other words, to cover the worker’s
medical bills apart from and in addition to the compensation for lost wages. Properly
understood, therefore, the term “compensation” as used in § 287.140.1 refers to the
monetary compensation provided to injured workers as required by the MWCL, not
to the overall compensation an employee generally receives from his employer in the
normal course of the employment relationship. See generally Mo. Rev. Stat. §§
287.170, 287.180, 287.190.

       In this case, the parties concede and the district court recognized that the Local
is not seeking to force ABB to pay wages outside the paid-leave benefit system for
the time spent by injured employees in attending follow-up medical care. The Local
seeks only to give injured employees a choice of taking paid leave or taking excused
unpaid leave if they wish to preserve their paid leave for later use. Regardless of
whether the context is the MWCL or the standard dictionary, we do not think the term
“compensation” includes the right for an employee to take unpaid leave, instead of
available paid-leave benefits, at the employee’s sole discretion. Consequently, we
believe that the district court erred when it broadened the term “compensation” to
include the flexibility to take excused unpaid leave in order to attend follow-up
medical care. We agree with ABB that it would be ironic to hold that ABB is denying



                                           -7-
compensation to an injured employee when the actual effect of its policy is to require
the employee to accept compensated, rather than uncompensated, leave.

        As a separate basis for summary judgment, the district court held that the
Supplemental Agreement impermissibly shifted to the injured employee the burden
of ABB’s statutory duty to provide medical services. The district court reasoned that
requiring an injured employee to use paid-leave benefits in order to receive
statutorily-mandated medical care would impermissibly alleviate the employer’s
absolute and unqualified duty to provide such care. According to the district court,
this “is contrary to the fundamental purpose of the [MWCL], which ‘is to place upon
industry the losses sustained by employees resulting from injuries arising out of and
in the course of employment.’” Local 2379, slip op. at 7 (quoting Wolfgeher v.
Wagner Cartage Serv., Inc., 646 S.W.2d 781, 783 (Mo. banc 1983)). We disagree.

       We do not believe that ABB’s practice under the Supplemental Agreement
shifts to the injured employee any part of the employer’s burden under the MWCL
to provide for medical services. Nothing in the MWCL requires an employer to pay
an injured employee outside the confines of the employer’s established paid-leave
benefits system when the employee leaves work to attend follow-up medical care.
Further, nothing in the MWCL prohibits an employer from requiring an injured
employee to use paid-leave benefits, rather than unpaid leave, in that situation. We
decline to write such a provision into the MWCL when the legislature has not chosen
to do so. Instead, we believe the MWCL’s silence regarding an area of labor-
management relations should not, as a general rule, create ambiguity in the statute.
Indeed, there may be a number of permissible reasons for the Missouri General
Assembly’s disinclination to regulate this area of labor-management relations
statutorily. See Clark v. Kansas City, St. Louis & Chicago R.R. Co., 118 S.W. 40, 45-
46 (Mo. 1909) (“It would be idle to speculate upon the ground for such legislative
omission and silence. For aught that we know both omission and silence may have
been grounded on an allowable legislative reason.”). In this case, silence may well

                                         -8-
have been intended to advance Missouri public policy favoring negotiated collective
bargaining agreements that fix the conditions of employment between labor and
management. McAmis v. Panhandle E. Pipe Line Co., 273 S.W.2d 789, 793 (Mo. Ct.
App. 1954) (“[A]s a general rule, public policy favors the negotiation of collective
bargaining agreements, or contracts, fixing conditions of employment between labor
and management.”). Recognizing that the Missouri General Assembly had been
silent on this issue, the parties to this litigation originally viewed this controversy as
a matter of contract, and we see no reason here to disturb judicially what has been
agreed upon contractually. See Evans v. Mo. Util. Co., 671 S.W.2d 812, 815 (Mo. Ct.
App. 1984) (viewing as a matter of contract the issue of whether payments under a
collective bargaining agreement should be credited toward compensation required
under the MWCL).

       In summary, MWCL § 287.140.1 gives an employee the right to employer-
provided medical care in addition to monetary compensation for wages lost as a result
of the work-place injury. The MWCL does not prohibit an employer from requiring
an employee to use paid-leave benefits, rather than unpaid leave, when the employee
leaves work to attend follow-up medical treatment. We conclude that the district
court incorrectly interpreted the MWCL. We therefore see no reason why the
parties’ agreement in the Supplemental Agreement should not be enforced in its
entirety.

III.   CONCLUSION

      The district court incorrectly held that the Missouri Workers’ Compensation
Law prohibits an employer from requiring an injured employee to use paid-leave
benefits to attend follow-up medical treatment scheduled during work hours.
Therefore, we reverse that part of the district court’s judgment entered in favor of the
Local and remand the case for entry of summary judgment in favor of ABB consistent
with this opinion.
                       ______________________________


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