Friday, August 12, 2011

Safety penalty cases

No scaffolding violation
The Commission reversed a penalty for an alleged employer safety violation.  ALJ House noted "As is apparent from the testimony of both claimant and claimant's employer, claimant was working on scaffolding which broke when his employer attempted to walk on the same board occupied by claimant."  the Commission noted the employee set up the boards which were 4 feet off the ground, he was aware of the defect, and the employer had no reason to know of any safety defect.  The Commission awarded PTD against the Fund in the case.  Moseley v Elite Stucco, 2014 Mo WCLR Lexis 48 (April 10, 2014).  The Commission noted the absence of medical history did not preclude a finding of causation. 
ALJ  House
Atty: Pitts, Musick

No safety penalty for woman too big for her seat. 
A 50-year old health care provider was awarded permanent and total disability benefits when she was driving a patient in West Plains, MO in 2009 to buy a soda, she became distracted by the patient, and struck a car resulting in leg injuries which placed her permanently in a wheelchair.  Barton v Green Acres Home of West Plains and Newton Group Home, 2014 Mo WCLR Lexis 31 (March 7, 2014). 

The Commission rejected the employer's arguments that claimant violated a safety policy by not wearing a seat belt and that her benefits should be reduced up to 50%.  The Commission affirmed a finding by the ALJ that the employer failed in this affirmative defense by not showing that the lack of a seat belt caused the injuries in question.   The ALJ alternately found that the employer did not "adopt" a policy to require its workers to wear seat belts and that a policy for employees to "obey the laws" was insufficient to invoke the penalty.  Claimant asserts because she was 400 pounds that she was unable to use a standard seat belt and there was no attempt by the employer to provide her a larger one.  She asserts that her chronic obesity of 400-450 pounds was never an obstacle or hindrance to her employment. 

"The courts have recognized that there must be a causal connection between the violation of the employer's safety rule and the employee's injury. Davis v. Roadway Express, Inc., 764 S.W.2d 145 (Mo. App. S.D. 1989); and Swillum v. Empire Gas Transport, Inc., 698 S.W.2d 921 (Mo. App. S.D. 1985). The failure of an employee to obey a safety rule does not authorize the imposition of the penalty statute unless the injury is caused by the Employee's failure. Swillum v. Empire Gas Transport, Inc., supra. The statute itself dictates that the penalty shall apply only when the injury is caused by the employee's failure to obey the safety rule."

The ALJ further rejected the argument that claimant's accident did not arise from her employment and noted a heightened occupational risk because she drove more on the job and had a passenger at the time of the accident who required more attention. 

The employer did not contest the finding of PTD on appeal and limited its alleged error to the safety penalty issue.  Claimant was rendered temporarily disabled for 93 weeks and spent nearly a year in a nursing home after her accident because she was unable to take care of herself.  The ALJ did not award Medicaid write-offs  when there was no evidence that claimant remained personally liable on the balance.   

ALJ  Wilson
Atty:  Alberhasky, Moberg
Experts:  Koprivica, Swearingin

No safety penalty for sticking hand in machine
Claimant established that he was permanently and totally disabled when his dominant right hand became stuck in a gizzard machine resulting in degloving injuries, but the Commission affirmed a 25% reduction of benefits.  Gonzales v Butterball, 2014 Mo WCLR Lexis 29 (3-5-2014)

"There is evidence that the claimant attended safety training for this machine and should have been aware of employer's safety policy to call a supervisor if the gizzards were stuck rather than trying to correct   it on his own. There was also testimony by a coworker that most employees followed this protocol."

Claimant was a 66 year old immigrant who spoke limited English and had worked for the employer for several years included taking the guts, eggs, and hearts out of turkeys. Claimant also cut out the gizzard and other parts of the turkey.  His job was hand intensive and after the accident he had hypersensitivity and reduced dexterity which delegated the injured hand to a 'helper' hand.  The opinion provides extensive detail of the effort of more than an hour to extricate claimant's trapped hand in the evisceration department. 

Commission strikes safety penalty on narrow reading of safety manual
Claimant hurt his foot by having it sticking out of a forklift.  The safety manual required employees to keep their feet inside the forklift when traveling, but the employer failed to establish claimant was aware of a safety rule requiring him to keep arms hands and legs inside the forklift when it was not "traveling" in Greer v Sysco Food Service, 2014 Mo WCLR Lexis 41 (3-28-2014) and reversed a penalty by the administrative law judge.  The commission affirmed a finding that claimant was partially disabled, rejecting vocational opinion based on self-reported limitations of a need to lie down.  Affirmed  ED 101389 (Mo App. 2014)(Nov. 18, 2014).
ALJ  Kohner
Atty Margolis

Supreme Court leaves issue unresolved of what is "compensation" for penalty provision 
   When an employer was liable for a 15% safety penalty the penalty did not apply to additional compensation from the Second Injury Fund, according to the Missouri Supreme Court in Hornbeck v Spectra Painting Inc. No SC 92116 (Mo. July 31, 2012), affirming a decision from the court of appeals. Payment of such a penalty was inapplicable because it would penalize the employer for conditions it had no control and may deter employers from hiring workers with pre-existing disabilities.

         The court of appeals awarded $11,578.94 in penalties by enhancing the award based on compensation paid in the form of medical and indemnity benefits. The Supreme Court indicated there was "no reason for this court to explore" what was meant by "compensation" because the issue was not a matter in controversy. "Spectra’s counsel conceded at oral arguments that, if the penalty is owed, it should apply to the compensation monies that Spectra voluntarily paid to Hornbeck before the Commission’s decision." The employer initially disputed whether any penalty applied but abandoned this issue. Claimant had recovered in addition to benefits against the employer an award of 42.4 weeks of compensation from the second injury fund.
      In Hornbeck v Spectra Painting, ED 95680 (Mo. App 9-6-11) the court rejected the employer's argument that "compensation" subject to penalty did not include $32,801.15 in medical benefits already paid, $16,754.88 in TTD benefits paid, or a credit of $7000 against PPD in previously overpaid benefits. The court affirmed a Commission award of penalties under the Scaffolding Act relying upon 1919 precedent showing a fall is prima facie evidence of negligence in the absence of exculpatory showing on the part of the employer. The employer presented no such evidence. Claimant failed to persuade the Commission that he was permanently and totally disabled, that his subsequent biceps repair and back fusion flowed from the accident, or that the penalty should extend to SIF benefits without producing an incongruous result of punishing employers for pre-existing injuries. The decision puts to rest the argument whether medical benefits are compensation under the statute based on some equivocal statements in Thompson v ICI American Holding, WD 72374 (8-9-2011).

Strict findings required to invoke affirmative defense of safety penalty

The Commission on its third opinion on this case reversed its original imposition of a penalty against the employee and concluded that the employer failed to prove an affirmative defense that claimant violated a safety rule to support a 50% penalty.  The employer offered testimony that there was no doubt that carrying a 100 pound bag up a 40 foot ladder was the prevailing cause of the injury.  Claimant sustained a back injury, required surgery, developed CRPS, and was unable to return to his career as a roofer due to intractable pain.   The commission concluded that the employer failed because it did not show that violation of a three point contact rule was the cause of the injury simply by showing the injury occurred during the violation of the rule.     Carver v Delta Innovative, 2-14-13; 379 S.W.3d 869; 2013 Mo App. Lexis 129 (January 29, 2013) The award had applied the penalty to all "compensation" .  The Commission found it lacked jurisdiction to grant relief of a credit or reimbursement between carriers for benefits voluntarily made under Kansas law. DOLIR 7-22-11.
ALJ McKeon
Atty: Kelly, Russell, Jurcyk, Dickson
Experts: Koprivica, Cordray, Abram
Treater: Kaufman, Drisko

Claimant's right hand was pulled into a pulley, when the claimant tried to work on a broken belt, he did not fully de-energize the equipment and tried to stop a blower with a broom handle instead.  The Commission awarded benefits but allowed a 37 1/2% reduction against all benefits paid, allowing a credit for more than $25,000, about half of which was medical bills. The issue whether medical bills were compensation was not preserved on appeal.  The court of appeals found that claimant's failure to follow lock-out safety rules was an efficient cause of the accident and did not have to be the sole cause.  The court found the employer enforced the rule by training and monitoring employee compliance, and did not have show previous safety violations and consequent discipline.  Claimant had attended annual training for 12 years.  The court found a rational basis in the 2005 amendments to impose different penalties to employers and employees for noncompliance, noting that both parties were not similarly situated.   Thompson v ICI American Holding, WD 72374 (8-9-2011)

The employer disputed if claimant's accident arose out of and in course of employment when she was asked to drive about 45 minutes to help staff another convenience store in Hollister. Claimant lost control of her car resulting in multiple injuries including the need for a ORIF hip. She was temporarily disabled for about 7 months. She reported since the surgery she had severe posture problems that limited her ability to drive, sit in front of a computer but could attend church. A vocational expert felt she could perform some sedentary work such as an illustrator because she previously worked 25 years as a graphic artist. ALJ Mahon concluded it was a close case but found that claimant was unemployable because of her limits with her posture and questionable capacity to maintain the pace of the employment.

The ALJ awarded $45,865.83 in penalties against the employer for unreasonable defense. Harness v Southern Copyroll, 291 S.W.3d 299 (Mo. App. 2009) found travel compensable when work requires travel away from the primary business. The ALJ found the travel between stores was for the sole benefit of the employer, and dismissed the argument the claimant violated company policy not to clock out once she left the store. The employer offered no evidence to contest the duration of TTD or amounts of medical bills. The employer had no basis to deny the 50% hip disability found by its own expert. "It is unconscionable to starve out the Claimant by continuing to deny medical care and temporary total disability once compensability is clear and the injuries are severe. The Commission affirmed an award of $229,373.12, which included the penalties, and awarded future medical including vehicle modification and permanent total benefits for the 49 year old claimant. Robin Johnson v Jared Enterprises, DOLIR 8-10-11.
ALJ: Mahon
Atty: Goodnight, Wesley
Experts: Koprivica, Swearingin, Hendler, Cordray
treaters: Wester

A sleeping b-driver on a truck claims she could never work again after she fell out of her bunk in 2001 when the truck braked suddenly. Although claimant was initially diagnosed with only multiple contusions, she continued to report for years chronic discomfort of her entire body. One physician provided 14 separate diagnosis and another pain management physician placed her fentanyl and methadone for primarily neck, back and shoulder symptoms. At the time of the hearing of the 2001 case, claimant was 60 years old. ALJ Wilson concluded claimant established that she was only permanently partially disabled, that she "overstated" her symptoms and an unrelated depression might impact her symptoms. The experts disputed whether or not fibromyalgia contributed to her symptoms. Claimant had worked only a week. The employer did not prevail on a safety penalty that claimant should have worn a seat belt, because the team driver training claimant apparently told claimant not to wear restraints, contrary to company policy. McPherson v New Prime Inc., DOLIR 3-9-11.

ALJ: Wilson
Atty: Pitts Law Office
Experts: Lennard, Paul

Claimant, a minor, sustained substantial injuries in a car accident while allegedly intoxicated, when he was working out of state and driving to Wal-mart to obtain supplies the next day for his employer. ALJ Mahon denied the employer's defense for drug and safety rule violations, and found that the employer failed to adopt or enforce any drug-free work place policy.
Claimant sustained more than $225,000 in medical bills, resulting in a ruptured spleen, forearm, fracture, and brain injury. The claimant asserts that the employer did not enforce its drug-free work place policy, that claimant's supervisor was drinking, and allowed claimant to drink before driving on his errand. The claimant further asserted that the employer waived any subrogation rights under a 'unclean hands' doctrine.

The Commission affirmed the award, which denied the defense of drug and safety penalties and declined a constitutional challenge on the penalty provisions as moot. The ALJ noted that the employer failed to introduce evidence that claimant's intoxication was illegal in the state where the accident occurred or that claimant accepted a drug-free policy when he was hired as he signed documents in 2005 but did not resign policy documents when he was re-hired in 2006. The case is Merkenson v Tap Enterprises, 4-29-10.

Safety penalty applies to medical bills

Claimant crushed both arms while working under a truck and the Commission affirmed a finding that he violated a safety penalty not to use supports under the truck. Claimant, 58, underwent 7-9 surgeries and restored limited use of his arms and was unable to return to work in his former job as a mechanic, which he had worked for 25 years. Judge Mieners awarded permanent total with disfigurement and did not apply a safety penalty against medical bills. The Commission modified the award and found the 30% penalty applied to all benefits, including medical, which in this case represented over $168,000. Stillwell v Knapheide Truck Equipment Commercial, DOLIR 3-23-10.

Safety penalty against employee for crush injury

Judge Miner applied a 37 1/2% penalty for all benefits including medical, disability and disfigurement when claimant injured his right hand when it was pulled into a machine and had not complied with all safety rules to de-energize and tag the machine.

Claimant retired from the employer after working nearly 40 years following the accident.

Claimant received 55% of right hand. Judge Miner deemed the safety breaches were not "egregious" to assert the maximum 50% penalty, which the employer had initially applied to paid benefits. The case is Thompson v ICI Starch, 3-16-10.

Procedural requirements for drug test
A drug-free work place policy that had zero tolerance and required random drug tests did not thwart benefits of a 23-year old framer who just said no to taking a drug test after a catastrophic injury. The Commission reversed a denial of benefits, noting that the employer failed to comply with a procedural twist how an employer requests a drug test in Roscom v Woodstone Builders, DOLIR 1-12-10.

Hospital nurses informed claimant that the carrier wanted a drug test and advised the claimant that he might want to talk to an attorney about his rights. The administrative law judge denied benefits, noting claimant had refused a drug test at the request of the employer and forfeited his right to benefits under 287.120.6. The commission reversed, noting there was no "request" nor evidence that the request was "of the employer" to invoke forfeiture of benefits under the compensation statute. The Commission further declined to adopt findings by the administrative law judge that the employer had a post-injury drug test policy.

The Commission issued a temporary award that the employer pay ongoing TTD benefits after July 2008, medical treatment including pain management and psychological treatment for claimant’s paraplegia, and deferred an award of past medical bills until the final award. The claimant asserts more than $150,000 in disputed unpaid bills.

Missouri law amended §287.120 in 2005 to increase penalties for drug or alcohol use in conjunction with an accident from 15 to 50% and allowed complete forfeiture when proscribed use is the proximate cause of the injury. Roscom highlights new procedural traps for employers wanting to assert the drug use defense when a post-accident testing is not expressly indicated, a claimant’s consent is sought only after the accident, and the employer never directly requests the test. Missouri reform in 2005 changed the interpretation of the statute from "liberal" to "strict" construction to help Missouri business. This decision is one of many recent cases that has weakened employer’s defenses under the rubric of strict construction.