David Wallace v. Bell Brothers, LLC

reduction would apply if:

i) The employee's death was caused by his failure to obey the employer's seat belt rule;

ii) The rule was a reasonable rule adopted by the employer for the safety of its employees;

iii) The rule had been kept posted in a conspicuous place on the employer's premises;

iv) The employee had actual knowledge of the rule; and

v) The employer had prior to employee's death, made a diligent effort to cause its employees to obey or follow the rule.

The Commission agrees that there was insufficient evidence in the record demonstrating a willful failure on the part of employee to wear his seat belt. The Commission further agrees that the Fund failed to satisfy the elements set forth in Davis; most significantly, that employee's failure to obey employer's seat belt rule caused his death. We emphasize that there is inadequate evidence in the record to deduce whether employee's death was in fact caused by his failure to wear his seat belt. There is no expert testimony establishing any causal relationship between employee's death and his failure to wear his seat belt. Additionally, the Commission finds that there was not sufficient evidence in the record to establish that employer made a diligent effort to enforce its safety rule.

The Commission agrees with the ultimate conclusion reached by the administrative law judge, that employee perished in an accident which arose out of and in the course of his employment with employer.

The Commission agrees that appropriate workers' compensation death benefits were awarded employee. The Fund is neither entitled to a credit for monies paid on account of an accidental death policy nor a reduction in death benefits due to a safety violation.

The award and decision of Administrative Law Judge Ronald F. Harris, issued August 29, 2006, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 29th \qquad$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: September 26, 2004.
5. State location where accident occurred or occupational disease was contracted: One-half mile east of Scandia, KS.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Uninsured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Driving truck transporting material with destination of Salt Lake City, Utah.
12. Did accident or occupational disease cause death? Yes. Date of death? September 26, 2004.
13. Part(s) of body injured by accident or occupational disease: Multiple.
14. Nature and extent of any permanent disability: Death.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer? N/a.
2. Employee's average weekly wages: $\ 1,056.44.
3. Weekly compensation rate: $\ 675.90.
4. Method wages computation: By agreement.

1. Amount of compensation payable:

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning, for Claimant's lifetime

1. Second Injury Fund liability: Yes.

$\ 675.90 per week from Second Injury Fund (see award).

Uninsured medical/death benefits : Burial expenses of \$5,000.00 to be paid by Second Injury Fund.

TOTAL:

1. Future requirements awarded: $\ 675.90 per week from Second Injury Fund (see award).

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:

Gregory Mealy.

Employee: David J. Wallace (deceased) Injury No: 04-107056

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: Davida Wallace

Employer: Bell Brothers, LLC

Additional Party Second Injury Fund

Insurer: Uninsured.

Checked by: RFH/cs

The matter of David Wallace, deceased, proceeded to a final hearing on July 20, 2006. Attorney Gregory Mealy represented Davida Wallace, wife/dependent ("Ms. Wallace"). Attorney Terrence Farris represented Bell Bros., L.L.C. (Employer) and Katie Ambler represented the Second Injury Fund ("SIF" or "Fund").

The parties stipulated to the following facts:

1) On September 26, 2004, David J. Wallace was an employee of Bell Bros., LLC, 11 Industrial Drive, Auxvasse, Missouri 65231, and David J. Wallace had been employed continuously by Bell Bros., LLC for over one year;

2) On September 26, 2004, Bell Bros., LLC had five or more employees, and had five or more employees continuously for more than one year;

3) David J. Wallace was an over-the-road driver for Bell Bros., LLC and was not an owner-operator;

4) On September 26, 2004, David J. Wallace was driving a truck owned by Bell Bros., LLC, hauling a trailer owned by Bell Bros., LLC, and the contents of the trailer were refractor cement, joint compound and two cement mixers, and his destination was Salt Lake City, Utah;

5) On September 26, 2004, David Wallace was involved in a motor vehicle accident while driving the truck and trailer owned by Bell Bros., LLC;

6) At the time of the accident, David J. Wallace was not wearing his seat belt;

7) On September 26, 2004, Bell Bros., LLC did not have Workers' Compensation insurance and was not selfinsured regarding workers' compensation insurance;

8) David J. Wallace was paid weekly based upon his output, mileage and allowance;

9) David J. Wallace's average gross wages over the last 13 full weeks prior to September 26, 2004, were $\ 1,056.44;

10) On September 26, 2004, Davida Wallace was married to David J. Wallace, Davida Wallace survives David J. Wallace, and Davida Wallace is not, and since September 26, 2004, has not been a married person;

11) As a result of the death of David J. Wallace, Davida Wallace incurred funeral expenses totaling \8,050.34.

The parties also stipulated to a death benefit rate of \ 675.90.

The following were identified as disputed issues to be resolved:

1) At the time of the accident was Claimant acting in the scope and course of employment

2) Are the Employer and/or the Second Injury Fund entitled to a credit for money paid and continuing to be

paid to Ms. Wallace under an occupational insurance accident policy

3) Are any benefits to be reduced by Claimant's failure to follow safety rules by not wearing his seat belt

4) Entitlement to funeral expenses

5) Entitlement to death benefits

6) Liability of the Second Injury Fund

7) Right to subrogation

Claimant's Exhibits A, B, C, C1-C10, D, E, F, G and J were admitted into evidence. An objection to the relevance of Claimant's Exhibit I was sustained but the exhibit was retained for the purpose of a full and complete record. Employer's Exhibits 1 through 6 were admitted. The Fund offered no exhibits.

Ms. Wallace's attorney requests a fee of 25 % of all benefits awarded.

Aaron Bell, a dispatcher and member of Bell Bros., LLC, testified that the Employer had determined preferred or recommended routes for their drivers to take to a particular destination. Those routes were determined based on safet