Renee Cummins v. Penske Logistics, LLC

Employee: Renee Cummins

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Employer asserts that employee's injuries resulted from her violation of employer's "one-door process" safety rule which required employees to open only one trailer door at a time to prevent cargo that may have shifted from falling out. The administrative law judge made only brief mention of this policy in a footnote on page 15 of his award; consequently, we discern a need for supplemental findings and analysis with respect to this issue.

Employer states, on page 6 of its brief and again on page 6 of its reply brief, that its witness, a safety manager named Mickey May, testified that employer trains all employees on the one-door process safety rule, and testified that employee had actual knowledge of the one-door process safety rule because she received training as to the rule on December 10 and 11, 2009. We have carefully reviewed Mr. May's testimony. He did not so testify. Mr. May did testify about employer's load securement policies, and identified employee's signature on a form memorializing her attendance at a training session covering such policies, but he did not even mention the one-door process safety rule. Suffice to say we find Mr. May's testimony lacking any probative value with respect to the question whether employee had actual knowledge of a one-door process safety rule.

We have carefully reviewed Employer's Exhibit 4, a document entitled "Load Securement – General" which includes the training materials identified by Mr. May. The training materials contain a number of employer rules regarding how to secure loads, but nowhere within this document are the words "one-door process" utilized, nor is there any other language that may be fairly characterized as setting forth such a rule. We note that elsewhere in employer's brief, it ultimately concedes that it did not have any written policy setting forth the one-door process safety rule before employee's accident on August 12, 2011. Especially in light of this specific concession on the part of employer, we find that Employer's Exhibit 4 is not probative as to the question whether employee had actual knowledge of a one-door process safety rule.

Employee presented testimony from Robert Harter, a coworker. Mr. Harter testified that employer did not adopt any rule regarding opening trailer doors until after employee's accident. Mr. Harter testified that he had never even heard of the one-door process safety rule before August 12, 2011. Given that there is essentially no contrary evidence on this point, we find Mr. Harter the more credible witness, and find that employer did not adopt the one-door process safety rule until after employee's accident on August 12, 2011.

We further note that even if such a policy was in effect at the time of the accident, this record provides no credible evidence that employee violated the policy, or that employee's accident or injury were caused by any violation of the rule. It follows that employer has failed to meet its burden of proof under § 287.120.5 with respect to the one-door process safety rule. We adopt, without further supplementation, the administrative law judge's findings, analysis, and conclusions with respect to employer's argument that employee's injuries resulted from her failure to properly secure the load.

**Conclusion**

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

The award and decision of Administrative Law Judge Kenneth J. Cain, issued November 25, 2013, is attached and incorporated by this reference.

The Commission approves and affirms as fair and reasonable the administrative law judge's allowance of a 25 % lien in favor of employee's attorney on compensation awarded herein.

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

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of June 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Renee Cummins

Injury No. 11-063136

Employer: Penske Logistics LLC

Insurer: Old Republic Insurance Company/Gallagher Bassett Services

Additional Party: N/A

Hearing Date: August 29, 2013;

Checked by: KJC/pd

Briefs Filed: September 30, 2013

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 12, 2011
5. State location where accident occurred or occupational disease was contracted: North Kansas City, Clay County, Missouri
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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of her employment as a truck driver for Penske, opened the doors to a trailer and several 90 -pound totes fell from the trailer and struck Employee on her head.
12. Did accident or occupational disease cause death? No. Date of Death? N/A
13. Part(s) of body injured by accident or occupational disease: head, neck, both upper and lower extremities and psyche

Employee: Renee Cumming

Injury No. 11-063136

Employer: Penske Logistics LLC

Insurer: Old Republic Insurance Company/Gallagher Bassett Services

Additional Party: N/A

Hearing Date: August 29, 2013

Checked by: KJC/pd

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. The nature and extent of the disability sustained by the employee;
2. Liability of the employer for past medial aid in the amount of $\ 1,615.13;
3. Liability of the employer for future medical aid;
4. Whether the employee's benefits may be increased by 15 percent due to an alleged violation of a state statute by the employer;
5. Whether the employee's benefits may be reduced by 25 to 50 percent pursuant to the statute due to the employee's violation of an employer safety rule or policy; and
6. Whether the employee is entitled to fees and costs due to an unreasonable defense by the employer.

At the hearing, Ms. Renee Cummins (hereinafter referred to as Claimant) testified that she was born on January 19, 1953 and that she would be 61 years old on her next birthday. She stated that she graduated from high school in 1971. She stated that she had no computer training.

Claimant testified that she worked as a truck driver for the last 31 years preceding her accident at work. She stated that she worked for the Penske Corporation from December 2009 to August 12, 2011. She stated that her job for Penske was to transport products to and from the Ford plant.

Claimant testified that the empty totes she hauled from the Ford plant were not secured in the back of the trucks. She stated that Penske employees had requested load locks to secure the totes and that Penske had denied the requests on the basis that Ford was responsible for loading the freight hauled from the Ford plant. She stated that unsecured freight would fall in the trucks three or four times per week.

Claimant testified that she sustained injuries at work on August 12, 2011. She stated that she did not remember what happened on that day, other than she was working alone and that she woke up in a hospital. She stated that she injured her head, neck, back, shoulders, arms, hands, and legs in the accident. She denied any prior injuries to those parts of her body.

Claimant testified that she had neck surgery in September 2011. She complained of continuing problems with constant pain from the base of her skull