Joe Ainsworth v. Branson R-IV School District

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

I detail what I believe to be the sequence of events leading to employee's death. Employee was driving the school bus and conversing with Mr. McSpadden. At some point, employee stopped responding to Mr. McSpadden, although employee was still seated upright with his hands on the steering wheel. The bus gained speed and veered toward a sign. After getting no response when he called out to employee, Mr. McSpadden stood up from his seat and attempted to jerk the wheel to try to steer the bus away from a sign. Despite his effort, the bus hit the sign and Mr. McSpadden was thrown off the steering wheel. By the time Mr. McSpadden regained control of the wheel, the bus had crossed the median, crossed over the opposite highway lanes, and was rolling on the shoulder into oncoming traffic. Mr. McSpadden steered the bus into a ditch.

The bus was violently rocked such that Mr. McSpadden was thrown into the air, hit his head on the ceiling and fell to the floor. Employee flew over Mr. McSpadden's body. At some point, employee hit is head as evidenced by three subgaleal hematomas on his head. Employee landed on his right side with his body wedged about his chest or neck between a bus seat and the bar of a metal handrail. Employee's legs were on top of Mr. McSpadden. Mr. McSpadden wriggled out from under employee's legs, sat in the driver's seat and stopped the bus.

A passerby witnessed the bus accident and came to the bus to assist employee and Mr. McSpadden. Mr. McSpadden was of the impression that employee was having difficulty breathing due to his physical position. The passerby pushed employee's body from the front while Mr. McSpadden pulled employee's belt from the back. Mr. McSpadden did this in an effort to make it easier for employee to breathe. Employee remained so situated for approximately 18 minutes until emergency personnel could free him. The impression of paramedic Brandon Heupel, as written in his report, was that the weight of employee's body was pressing employee's neck against the bar and preventing employee from breathing.

There are two medical theories advanced for employee's death. Claimant contends employee died of asphyxiation from the compression of the metal bar on his body (positional asphyxia). Claimant contends that employee's heart was still beating until he became wedged between the bar and seat at which point his body position prevented him from breathing sufficiently. Employer contends employee died of sudden cardiac death while he was still in the driver's seat of the bus and that employee's heart stopped beating before he became wedged between the bar and the bus seat.

Dr. Norton believes employee's heart was still beating at the time he became wedged between the bar and the seat. The opinion of Dr. Norton persuades me in this matter. In particular, I am persuaded by Dr. Norton's explanation that the subgaleal hematomas on employee's head are evidence that employee's heart was still beating when he hit is head during the accident. Hematomas are caused by blood filling the site of an injury so blood pressure from some mechanism is necessary for their formation.

Dr. Nichols suggests two possible causes of the subgaleal hematomas. First, he suggests gravity could bring blood to the site of the injury. Employee's position on his side with his head tilted upright makes this cause implausible. Second, Dr. Nichols suggests that CPR could create enough blood pressure to allow blood to leak into the injury. Dr. Nichols testified that CPR results in blood pressure that is approximately twenty-five percent (25\%) of that produced by a properly functioning heart. I do not believe this minimal pressure created the hematomas reflected in the photos in evidence.

Dr. Belz relies on the absence of external markings on employee's neck in concluding that the cause of death was not asphyxia. He also identifies the lack of petechia as a minor factor in his conclusion, although

Dr. Belz agrees with the medical literature in the record that petechia is not always present with asphyxia and the absence of petechia does not eliminate asphyxia as a cause of death.

Dr. Norton's opinion that employee's heart was still beating is the most logical explanation for the subgaleal hematomas and the bruise on employee's esophagus. For that reason, I believe positional asphyxia caused by employee's position between the bar and the seat was the substantial factor in causing employee's cardiac failure and death.

The conditions of employee's workplace required him to drive on the highways at highway speeds in a school bus. The school bus had a metal handrail in front of the first seat of the bus. The speed of the bus caused the bus to rock violently when the bus left the roadway. The violent rocking sent employee through the air landing him between the bar of the handrail and the seat. Regardless the source of employee's initial nonresponsiveness, it is clear the conditions of employee's workplace contributed to employee's accidental death by asphyxia. "[A] causal connection is established if the conditions of the workplace contributed to cause the accident, even if the precipitating cause was idiopathic." Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 528 (Mo. banc 1993). Employee's death arose out of his employment.

Dependent has met her burden of proving she is entitled to benefits under the Missouri Workers' Compensation Law. I would award to her medical expenses, funeral expenses and death benefits.

I would reverse the award of the administrative law judge. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Joe Ainsworth

Injury No. 05-023443

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: Linda Ainsworth

Employer: Branson R-IV School District

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: March 31, 2008

Checked by:

1. Was the injury or occupational disease compensable under Chapter 287? NO
2. Was there an accident or incident of occupational disease under the Law? NO
3. Date of alleged accident or onset of occupational disease: MARCH 24, 2005
4. State location where alleged accident occurred or occupational disease was contracted: NEWTON COUNTY, MO
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
6. Did employer receive proper notice? YES
7. Did alleged accident or occupational disease arise out of and in the course of the employment? NO
8. Was claim for compensation filed within time required by Law? YES
9. Was employer insured by above insurer? YES
10. Describe work employee was doing and how alleged accident occurred or occupational disease contracted: DRIVING SCHOOL BUS
11. Did alleged accident or occupational disease cause death? NO
12. Part(s) of body injured by accident or occupational disease: N/A

- Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: N/A
2. Value necessary medical aid paid to date by employer/insurer? -0-
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: N/A
5. Weekly compensation rate: $\ 273.40

- Method wages computation: STIPULATION

1. Amount of compensation payable: -0 -

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

1. Second Injury Fund liability: N/A

1. Future requirements awarded: N/A

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Joe Ainsworth

Injury No. 05-023443

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: Linda Ainsworth

Employer: Branson R-IV School District

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: March 31, 2008

Checked by:

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on March 31, 2008. The record was left open for the submission of additional evidence, and the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about May 27, 2008.

The employee appeared personally and through his attorneys, Patrick J. Platter, Esq. and Christiaan D. Horton, Esq. The employer and insurer appeared through their attorney, Brandon Potter, Esq. The Health Care Provider, Freeman Neosho Hospital, is an additional party, relative to the filing of a Medical Fee Dispute (Direct Pay), but did not appear for the hearing.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about March 24, 2005 Branson R-IV School District was an employer operating under and subject to

The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Company.

(2) On the alleged injury date of March 24, 2005, Joe Ainsworth was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and contract of employment was made in Taney County, Missouri. The alleged accident occurred in Newton County, Missouri. The parties agree to venue lying in Christian County, Missouri. Venue is proper.

(4) The employer received timely and actual notice of the claimed accident and injury, as required by Section, 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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