Tim Nolan v. DeGussa Admixtures Inc.

sample was labeled with his assigned hospital identification number (the same number that appeared on his hospital bracelet and in all his paperwork). At each stage of the hospital's handling, from the time of the collection of the sample through testing, the sample and its identification number were checked against the hospital's internal records and orders.

Because the drug screen was positive for methamphetamines, the hospital followed its procedures and sent employee's sample for additional testing by Medtox Laboratories, a facility with a reputation for reliability. Medtox Laboratories certified that it followed its internal procedures "to ensure the chain of custody of samples, the testing of those samples and the validity of the test procedures employed by our laboratory."

The confirming test was more accurate than the screening test. Although not truly a quantitative test, it produced "big positives" for both methamphetamine and THC (marijuana) metabolite.

Dr. Allen J. Parmet, a certified medical review officer for thirteen years, indicated that employee had used methamphetamines not more than three days prior to the July 28, 2005, accident, and had used marijuana not more than a week prior to the accident. Employee's widow, too, confirmed that she had been aware for years of employee's use of marijuana. She was not aware that he used methamphetamines.

Dr. Parmet indicated that unlike the marijuana (which the body fairly quickly breaks down into chemicals that do not actively affect the brain or nervous system) in employee's system, the methamphetamines in his system were being metabolized by his body into amphetamines and that both these chemicals were actively affecting employee's brain and nervous system as of July 28, 2005, when the accident occurred and the sample was collected. During deposition, he answered the question of what systems of the body were affected by use of methamphetamines:

Well, since they affect the adrenal system, almost everything. It affects the adrenergic functions in the brain and everything the brain does. It affects heart and blood vessels, increasing the pulse, the pressure, constricting blood vessels.

It affects adrenalin at the level of the muscles, the gut. So everything in the body, because adrenalin is a normal hormone that is secreted and designed to have many, many effects, it affects your lungs, the breathing, constricts muscles in your bladder. Any muscle in the body, any blood vessel. It even makes the hairs stand on end.

(Tr. 5361.)

Section 287.240 states as follows:

If the injury causes death, either with or without disability, the compensation therefore shall be as provided in this section:

(1) In all cases the employer shall pay direct to the persons furnishing the same the reasonable expense of the burial of the deceased employee not exceeding five thousand dollars.

It is not disputed that employee's work-related injury caused his death. Counsel for employee has presented evidence that employee's widow, Lois Nolan, paid at least $\ 5,941.61 in burial expenses in connection with employee's death. The statute mandates an award for such expenses, but not to exceed $\ 5,000.00. Accordingly, we hereby modify the Decision to award burial expenses to Lois Nolan.

Section 287.530.2 RSMo states that "commutation is a departure from the normal method of payment and is to be allowed only when it clearly appears that some unusual circumstances warrant such a departure." We affirm that part of the Decision holding that the circumstances in the case before us are not clearly of the unusual type warranting such a departure.

Section 287.190.4 RSMo states as follows:

If an employee is seriously and permanently disfigured about the head, neck, hands or arms, the division or commission may allow such additional sum for the compensation on account thereof as it may deem just, but the sum shall not exceed forty weeks of compensation.

In Akers v. Warson Garden Apts., 961 S.W.2d 50 (Mo. banc 1998) (overruled in part on other grounds in Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)), this state's supreme court affirmed the Commission's decision not to award disfigurement benefits to a deceased employee's dependents. In the Commission's decision that it affirmed, the Commission discussed the origins of Missouri's statute concerning disfigurement. The disfigurement benefits were clearly intended for permanently but partially injured employees whose visible injuries would impede their hopes for finding work. Even in the statutory language relevant to this decision, the only disfigurement considered is that located about the head, neck, hands, or arms. These are injuries that are in visible areas of the body, difficult to conceal and potentially damaging when looking for future work.

The Akers court upheld the Commission:

Section 287.190 provides for the compensation to be paid for and defines "permanent partial disability." Section 287.190.6 defines "permanent partial disability" as being permanent in nature and partial in degree. Employee died the day after the fire but his death does not affect Employer's liability to furnish compensation as provided in chapter 287. Section 287.230. However, there is no evidence that Employee's injuries were partial in degree and, therefore, that he was entitled to compensation for permanent partial disability. Accordingly, the Commission did not err by failing to award disfigurement benefits.

Similarly, in the case at hand, employee's death ended any possibility of future employment. His injuries were not partial in degree. Disfigurement benefits were not intended under such circumstances. Therefore, we reverse that part of the Decision awarding any disfigurement benefits to employee.

The administrative law judge awarded $105 / 7^{\text {th }}$ weeks of temporary total disability. While we affirm the award of such benefits, we do not believe the judge properly calculated the number of weeks involved and, accordingly, modify that part of the Decision. Employee was entitled to and we hereby award temporary total disability benefits from the date of his injury on July 28, 2005, to the date of his death on November 10, 2005.

Section 287.560 RSMo states in relevant part: "[I]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them."

Section 287.120.6(2) RSMo causes complete forfeiture of all benefits and other compensation to an employee if the employee's use of drugs in violation of his employer's rule is the proximate cause of the relevant injury. In the case at hand, employer/insurer had received test results indicating that employee was arguably under the influence of methamphetamines and marijuana (in violation of its rules) at the time he lost control of the vehicle he was driving on July 28, 2005 .

We are persuaded that these circumstances gave employer/insurer a reasonable basis for withholding benefits and denying liability to employee. Therefore, we hereby reverse that part of the Decision that awarded costs under section 287.560 .

Employer has not met its burden of establishing that employee's use of drugs in violation of employer's rules was the proximate cause for his July 28, 2005, accident. The employee with whom he was working that day saw no sign that claimant was impaired. Neither the police nor any of the toxicology experts could say with any certainty what exactly was the cause of employee's July 28 accident. Thus, the forfeiture provisions of section 287.120.6(2) do not apply to the

case at hand.

We next consider section 287.120.6(1), which states as follows:

Where the employee fails to obey any rule or policy adopted by the employer relating to the use of alcohol or nonprescribed controlled drugs in the workplace, which rule or policy 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 if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs; provided, that it is shown that the employee had actual knowledge of the rules or policy so adopted by the employer and, provided further that the employer had,