Friday, November 11, 2016

Court affirms death benefits without safety penalty reduction

Hadley, dec. v Beco Concrete Products
SD 34941 (Nov 10, 2016)

Affirmed death benefits and denial of safety penalty

Claimant drove off of a highway while operating a flatbed truck in 2012 and died in the accident.  The employer appealed the Commission not to apply a safety penalty  to survivor benefits.

The Commission based wages under 287.250.4 based on income for the preceding year and used comparable full-time employees under the exceptional circumstances provision to calculate wages because claimant's work schedule was irregular.  The court found no error to calculate wages in this method.

The Commission rejected the employer's contention that it warned the driver as a company safety rule to comply with safe driving procedures and that the claimant was speeding and violated the safety rule in conjunction with his accident. The Commission noted such warnings must be with a greater degree of specificity.  The court found no evidence to show when and where  the employer had adopted such a safety rule and had no persuasive evidence the claimant was speeding at the time he went off of the road.

The court noted the appellant made multifarious arguments contrary to the rules.