Garry Buescher v. Missouri Highway and Transportation Commission

The only issue presented for review is whether the employer is entitled a fifteen percent (15\%) reduction in compensation under Section 287.120.5 RSMo. Section 287.120.5 reads:

Where the injury is caused by the willful failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, which rule has been kept posted in a conspicuous place on the employer's premises, the compensation and death benefit provided for herein shall be reduced fifteen percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a diligent effort to cause his employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.

The statute establishes an affirmative defense so employer bears the burden of proving each element of the defense. The only element of employer's defense that is in dispute is whether employee's injuries were caused by his willful failure to use his seatbelt and his failure to obey employer's reasonable rule that he do so. The administrative law judge found that employer failed to satisfy this burden. I disagree.

Dr. Rupright, employee's treating physician, is a specialist in the treatment of brain trauma. He has treated hundreds of brain injury patients. In his experience, individuals who are thrown from vehicles during accidents usually suffer more involved injuries than individuals wearing seatbelts who stay in their cars. Dr. Rupright testified within a reasonable degree of medical certainty that employee's ejection likely caused employee to suffer a greater injury than he would have sustained had he stayed in the vehicle. Dr. Rupright based his opinion on his many years of experience treating brain injury patients as well as literature in the fields of physical medicine and rehabilitation. I find credible the opinion of Dr. Rupright.

The cab of the vehicle sustained minimal damage in the collision, which lends weight to Dr. Rupright's opinion that employee sustained greater injury because he was thrown from the vehicle.

Based upon the foregoing, I find employer has satisfied its burden of showing that employee's willful failure to wear his seatbelt and his failure to obey employer's reasonable rule to do so caused employee's injuries.

I would modify the award of the administrative law judge to reduce compensation benefits by fifteen percent (15\%) in accordance with $\S 287.120 .5$ RSMo. For the foregoing reasons, I respectfully dissent from the portion of the award denying the reduction.

Employee: Garry W. Buescher

Injury No. 00-158691

Dependents: N/A

Before the

DIVISION OF WORKERS'

Employer: Missouri Highway and Transportation CommissionDMPENSATION

Department of Labor and

Additional Party:

I. S. A. Bartlett, M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M. M.

1. Was there an accident or incident of occupational disease under the Law? Yes.
2. Date of accident or onset of occupational disease: October 25, 2000.
3. State location where accident occurred or occupational disease was contracted: Linn County, Missouri.
4. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
5. Did employer receive proper notice? Yes.
6. Did accident or occupational disease arise out of and in the course of the employment? Yes.
7. Was claim for compensation filed within time required by Law? Yes.
8. Was employer insured by above insurer? Employer is self-employed.
9. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was driving a highway striping truck, which collided with another vehicle.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: Head, neck, shoulder, ribs, body as a whole.
3. Nature and extent of any permanent disability: Permanent total disability.
4. Compensation paid to-date for temporary disability: $\ 32,751.72.
5. Value necessary medical aid paid to date by employer/insurer? \$168,033.05.
6. Value necessary medical aid not furnished by employer/insurer? None.
7. Employee's average weekly wages: $\ 577.15.
8. Weekly compensation rate: $\$ 384.77 / \ 314.26
9. Method wages computation: Stipulation.

1. Amount of compensation payable:

Underpayment of temporary total disability: $\ 5,780.25

Permanent total disability benefits from Employer beginning September 27, 2002, and payable for Claimant's lifetime

1. Second Injury Fund liability: No
2. Future requirements awarded: Prescription medication benefits as set forth more fully herein

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Akers

Employee: Garry W. Buescher

Injury No: 00-158691

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Missouri Highway and Transportation Commission

Additional Party: Second Injury Fund

Insurer: Self-Insured

Checked by: RJD/tmh

The evidentiary hearing in this case was held before the undersigned administrative law judge on May 3, 2005, in Macon. The hearing was held to determine the following issues:

1. Whether Employer shall be ordered to provide future medical benefits for Claimant, pursuant to Section 287.140, RSMo;

1. The nature and extent of Claimant's permanent disability (Claimant alleges he is permanently and totally disabled);
2. The liability of Employer, if any, for permanent partial disability benefits or permanent total disability benefits;
3. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits; and
4. Whether Claimant shall be assessed a 15\% penalty against his benefits for alleged violation of Section 287.120.5.

The parties stipulated:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That the accident occurred in Linn County; the parties agreed, on the record, to holding the hearing in Macon County;
3. That the Claim for Compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the notice requirement of Section 287.420, RSMo, is not a bar to Claimant's Claim for Compensation;
6. That Claimant sustained an accident arising out of and in the course of his employment with Missouri Highway and Transportation Commission on October 25, 2000;
7. That the rates of compensation are $\$ 384.77 / \ 314.26, based on an average weekly wage of $\ 577.15;
8. That Employer was an authorized self-insured for workers' compensation purposes at all relevant times;
9. That Employer paid medical benefits of $\ 168,033.05; and
10. That Employer paid temporary total disability ("TTD") benefits from October 26, 2000 through September 26, 2002, in the total amount of $\ 32,751.72, and that such benefits were paid at the rate of $\ 327.05 (invoking the 15 % penalty).

The evidence consisted of the testimony of Claimant, Garry Buescher; the testimony of Patricia Ann Buescher, his wife; the testimony of Shari Dye, District 2 Safety and Health Manager for the Missouri Highway and Transportation Commission; the deposition testimony of Dr. Barry I. Feinberg; the deposition testimony of Dr. Jon Rupright; a "Vocational Rehabilitation Evaluation" written by Timothy G. Lalk; accident report from the Missouri State Highway Patrol; medical records; and photographs.

I find that Claimant, Garry W. Buescher, was born on August 10, 1946, is married with two children, and has lived in Macon County, Missouri for twenty-six years. I find that Claimant was employed by the Missouri Highway and Transportation Commission for over 12 years at the time of his work-related accident on October 25, 2000. I find that, at the time of his injury, Claimant was a special maintenance crew leader and was driving a highway striping truck.

Claimant has no memory whatsoever of the accident. The Highway Patrol Report states that the accident occurred at the intersection of U.S. Highway 36 and Missouri Highway 139 in Linn County. According to the report, a Chevrolet Suburban driven by a Mr. Vandeventer was traveling westbound on U.S. 36 near the intersection of Mo. 139, when the striping truck driven by Claimant, which was stopped at a stop sign on Mo. 139, pulled out in front of the Vandeventer vehicle, causing the Vandeventer vehicle to strike Claimant's vehicle, and causing Claimant's vehicle to overturn. Claimant was ejected from the vehicle out of the driver's side window.

Claimant has no recollection of whether he was wearing his seatbelt. Claimant testified: "Sometimes I wore it, sometimes I didn't."

Claimant sustained multiple injuries in the accident. These included fractures of the C1, C2, and C7 vertebrae and herniated discs at C4-5 and C5-6, which ultimately required cervical fusion surgery. Claimant also sustained a malunion fracture of the left scapula, and a separation of the left AC joint. Claimant also sustained multiple rib fractures, which resulted in pulmonary problems including pneumonia. Claimant also sustained a closed head injury with a subdural hematoma, resul