Dustin Elsworth v. Wayne County, Missouri

First, we must note that the first sentence of section 287.120 provides that: "Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for . . . death of the employee by accident . . . arising out of and in the course of the employee's employment." Missouri courts have long held that in workers' compensation cases, negligence is immaterial, and the accident for which compensation is sought may be with or without human fault. Contributory negligence, even gross negligence by an employee, is no bar to compensation in a workers' compensation proceeding.

Hadley v. Beco Concrete Prods., 505 S.W.3d 355 (Mo. App. 2016)(citations omitted).

Accordingly, we must conclude that ADHD, texting, or employee's purported negligence are wholly irrelevant with regard to whether a safety penalty is appropriate in this case. Instead, as correctly noted by the administrative law judge in his award, the safety penalty under $\S 287.120 .5$ can only be applied where the employer is able to prove the following four elements:

1. [T]hat the employer adopted a reasonable rule for the safety of employees;
2. that the injury was caused by the failure of the employee to obey the safety rule;
3. that the employee had actual knowledge of the rule; and
4. that prior to the injury the employer had made a reasonable effort to cause his or her employees to obey the safety rule.

Carver v. Delta Innovative Servs., 379 S.W.3d 865, 869 (Mo. App. 2012).

Employer claims it had safety rules (1) prohibiting speeding and (2) requiring employees to wear seatbelts at all times; that employee broke these rules despite employer's reasonable effort to cause employees to obey them; that employee had actual knowledge of these rules; and that employee's violation of these rules caused his accident and/or injury. The administrative law judge found that even if employee was speeding or not wearing a seatbelt, employer failed to meet its burden of proving a reasonable effort to cause employees to obey such rules, because employee was only 18 years old at the time of his accident, had no CDL, had never driven a dump truck in prior employments, and employer provided no training to employee apart from having him ride along on several occasions with senior employees. The administrative law judge additionally reasoned that employer had not actually adopted the rules in question at the time of the accident, because employer provided no evidence of written rules, and the available evidence instead suggested a generalized, orally-conveyed "obey all laws" rule that was simply too broad and vague to constitute a reasonable rule for the safety of employees for purposes of the statutory analysis.

We do not disagree with the administrative law judge's findings, analysis, or conclusions as summarized above. However, we write this supplemental decision to provide additional affirmative findings with regard to the critical factual questions whether employee was (1) speeding, or (2) not wearing his seatbelt at the time of the accident.

Employee presented testimony from William Hampton, a crash reconstructionist and safety consultant for the trucking industry. Mr. Hampton pointed out that employer's accident reconstructionist, Henry Vega, inappropriately referred to the yaw marks found at the accident scene as if they were "skid marks" in attempting to estimate employee's speed at the time of the accident; Mr. Hampton further explained that speed calculations simply cannot be made from yaw marks. After careful consideration, we find Mr. Hampton's testimony most credible with regard to this issue. We find that employer has failed to meet its burden of proving employee was speeding. We find, instead, that employee was not speeding at the time of the accident.

With regard to the seatbelt issue, employer takes it for granted, in its brief, that the evidence conclusively or overwhelmingly demonstrates employee was not wearing a seatbelt at the time of the accident. The evidence, however, is in stark conflict with regard to this issue. Although it appears from the Missouri State Highway Patrol report that employee was found, after the accident, without the seatbelt engaged, both of employer's experts, Dr. Lisa Gwin and Mr. Vega, admitted that seatbelts may spontaneously release during rollover accidents; we so find. Mr. Hampton credibly testified that in his experience, more likely than not, unbelted persons are thrown from the vehicle during a rollover crash; it is uncontested that employee remained in the cab during the entire course of the accident. Finally, we note that all of the evidence available suggests (and we so find) that it was employee's habit and practice to wear his seatbelt at all times.

In light of the foregoing, we find that employer has failed to meet its burden of proving employee was not wearing his seatbelt at the time of the accident. Instead, we find that employee was wearing his seatbelt, consistent with his habit and practice, at the time of the accident, but that the seatbelt spontaneously released at some point during the rollover crash.

In sum, we find that employer has failed to meet its burden of proving that employee was speeding and/or not wearing his seatbelt at the time of the accident. In light of our additional findings, and our adoption herein of the administrative law judge's findings, analysis, and conclusions with respect to this issue, we affirm the conclusion that employer's defense under § 287.120.5 fails.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Gary L. Robbins, issued May 11, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 $8^{\text {th }}$ day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Dustin S. Elsworth

Injury No. 07-026920

Dependents: N/A

Employer: Wayne County, Missouri

Insurer: Missouri Association of Counties

Appearances: Matthew B. Uhrig, attorney for the employee.

Richard L. Montgomery, Jr., attorney for the employer-insurer.

Hearing Date: February 8, 2016

Checked by: GLR/kg

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? March 30, 2007. (corrected by the parties as of April 8, 2016).
5. State location where accident occurred or occupational disease contracted: Wayne County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.