Jesse Marquess v. Fischer Concrete Services, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge Allowing Compensation and Denying Claim for Death Benefits)

**Injury No.:** 11-068578

**Employee:** Jesse Marquess, deceased

**Claimants:**

- The Estate of Jesse Marquess,

- The Estate of Patricia Marquess,

- and Ronald C. Smith as guardian of the person and conservator of the estate of the minor claimant, Hayley A. Marquess

**Employer:** Fischer Concrete Services, Inc.

**Insurer:** Regent Insurance Company

**Additional Party:** University of Missouri Healthcare

This workers' compensation case was originally submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. During the pendency of the application for review the employee died.

On November 30, 2015, in addition to a Suggestion of Death alleging the employee died on November 13, 2015, the employee's attorney requested leave to file an amended claim on behalf of employee's dependents, his wife Patricia Marquess and Hayley A. Marquess, a minor granddaughter. The claimants' amended claim alleged that the employee's August 27, 2011, injury was the prevailing factor in his resultant injuries, disabilities, and death on November 13, 2015.

On March 17, 2016, the Commission substituted Patricia Marquess and Hayley A. Marquess as the claimants in this matter, accepted the claimants' amended claim for compensation, and remanded the matter to the Division of Workers' Compensation for a hearing to take evidence as to:

- whether the accident of August 27, 2011, was the prevailing factor causing the employee's death;

- whether Patricia Marquess and Hayley A. Marquess are dependents entitled to benefits under Chapter 287; and

- any other issues bearing upon the merits of the amended claim, including any affirmative defenses that employer/insurer may raise thereto.

The Commission's March 17, 2016, order directed that, should the parties not resolve their dispute, that at the close of the hearing the file was to be returned to the Commission for a determination of the issues raised in the claimants'

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

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amended claim, as well as the merits of the employer/insurer's application for review.

On September 14, 2016, an administrative law judge (ALJ) held an evidentiary hearing pursuant to the Commission's March 17, 2016, remand order.

On September 21, 2016, the employee's wife, claimant Patricia Marquess, died. On November 23, 2016, counsel for claimant Hayley A. Marquess filed a motion requesting that the Commission add as claimants to this matter the estate of Jesse Marquess, the estate of Patricia Marquess, and Ronald C. Smith as successor guardian of the person and conservator of the estate of minor Hayley A. Marquess. On March 16, 2017, pursuant to §287.580, the Commission ordered that these proceedings be revived and proceed in favor of the above-cited claimants.

Now pending before the Commission are:

- Employer/insurer's application for review of the ALJ's October 15, 2015, Award.

- Claimants' November 30, 2015, amended claim for death benefits.

I.

REVIEW OF ALJ'S OCTOBER 15, 2015, AWARD

We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the ALJ. We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Preliminaries

The ALJ identified twelve disputed issues at hearing, referenced in his twenty-three page award. Employer's timely application for review limits its allegations of error in the ALJ's award to the following:

1. The judge's decision is erroneous because Employer is entitled to a reduction in benefits due to Employee's failure to obey Employer's safety rule under RSMo 287.120.5. Employer had adopted a rule requiring tanker drivers to follow the rules of third party sites, including specifically requiring tanker drivers to use a "gantry" to access the top hatches of the trucks to load and unload the truck. Employer also required employees subject to fall over six feet to use fall protection. Employee had actual knowledge of the rules. Employee's accident was caused by his failure to obey the rules. Employer had made reasonable effort to cause its employees to follow the rules. Based on the violation, Employer seeks a

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

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50% reduction in all benefits, including but not limited to TTD, PTD, and all medical benefits.

1. The judge's decision is erroneous because Employee is not entitled to replacement of carpeting because it is neither reasonable nor necessary medical treatment and would not cure or relieve Employee of the effects of his injury.

1. The judge's decision awarding direct payment of medical expenses to the University of Missouri was erroneous because the bills are subject to a reduction for Employer's [sic] safety violation.

For the reasons stated below, we modify the award and decision of the ALJ referable to the issue of future medical benefits, including employer's liability for replacement of carpeting with linoleum in the employee's home to allow the employee proper use of his wheelchair. We also supplement the ALJ's decision with respect to his findings on the issue of whether a safety penalty should apply to reduce the employee's benefits, pursuant to §287.120.5 RSMo.

Discussion

Should the Employee's Compensation be Reduced Pursuant to the Penalty Provisions of §287.120.5?

Section 287.120.5 RSMo provides:

Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced by at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.

§ 287.120.5 RSMo constitutes an affirmative defense for the employer. Section 287.808 RSMo provides, in pertinent part:

The burden of establishing any affirmative defense is on the employer. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

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The ALJ correctly notes that an employer is liable to furnish compensation under the provisions of The Workers' Compensation Law irrespective of an employee's negligence. 1 He further observes that imposition of the 50% penalty as provided in § 287.120.5 would result not only in reducing the employee's weekly benefits but also in shifting liability to the employee for half of all of his medical costs, amounting to "1.7 million and counting" as of the date of the award.2

Section 287.800 RSMo requires that § 287.120.5 be strictly construed.

Based on the evidence in the record, as the ALJ found, "Employer's President, Vice President/General Manager, and Safety Manager could not articulate any reasonable efforts Employer made to cause its employees to obey the 'use the gantry' rule, other than telling the pneumatic tanker drivers at safety meetings 'when you're on someone else's property, follow their rules.'"3

We find that, in this case, employer's stated rule of "when you're on someone else's property, follow their rules" was not in fact a "rule adopted by the employer for the safety of employees" within the meaning of § 287.120.5, RSMo. We find employer's policy was, instead, a rule that generally governed workers' relationships with employer's customers. We agree with the ALJ's conclusion that employer never adopted a "use the gantry" rule, nor did it make reasonable efforts to cause its employees to obey such a rule.4

Our reasoning is consistent with the recent decision of Amie Elsworth v. Wayne County, Missouri, No. SD34919 (Mo. App. S.D. April 24, 2018). In Elsworth, the appellate court upheld the Commission's decision that an employer's admonition that its truck driver "obey all traffic laws, [and] regulations"5 did not constitute a safety rule adopted by the employer for purposes of an award reduction pursuant to § 287.120.5, RSMo.

Employer's Liability for Replacement of Carpeting with Linoleum in Employee's Home

The ALJ found "As a part of Employer-Insurer's duty to provide Claimant with future medical benefits, Employer and Insurer are specifically ordered to replace the carpet in Claimant's bedroom and living room with linoleum floor covering to allow Claimant proper use of his wheelchair."6

We modify the ALJ's award to terminate employer's liability to provide carpet replacement or any additional future medical benefits, as of November 13, 2015, the date of the employee's death.

1 Section 287.120.1 RSMo.

2 Award, 9.

3 Id. 15.

4 Employer had no rule or policy that generally prohibited the conduct employee was engaged in when injured.

5 Amie Elsworth v. Wayne County, Missouri, No. SD34919 (Mo. App. S.D. April 24, 2018, slip op. at 3).

6 Id. 2.

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

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As we have found, employer has failed to meet its burden of proving that the penalty provided for in § 287.120.5 relating to an employee's failure to use a safety device provided by employer or failure to obey a safety rule applies in this case. Employer therefore remains liable to pay $572.06 directly to University of Missouri Healthcare, as provided in the ALJ's award.

The claimants' amended claim for compensation alleges, "Employee, while in the course and scope of his employment, fell from a powder truck tanker which accident was the prevailing factor in his resultant injuries, disability and death on 11/13/2015."

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

Counsel for the dependent claimants produced the report and deposition of the employee's treating physician, cardiologist Dr. Kenneth N. Azan, at the September 14, 2016, hearing. In a June 13, 2016, report, Dr. Azan noted that the employee had multiple medical problems and co-morbidities as a result of being rendered a paraplegic due to his August 27, 2011, work injury. He further noted the employee's prior history of myocardial infarction and stated that heart failure became a component of the employee's illness. Dr. Azan concluded:

[The employee] was quite sedentary and his death was rather sudden and could have certainly resulted from a massive pulmonary embolus because he complained of chest pain, sudden acute shortness of breath, followed by a cardiac arrest. This very well could have been due to a massive pulmonary embolus which is most likely in his situation of being totally sedentary and bed and chair ridden. Of course, without an autopsy, there

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

-6-

is no way of knowing if this did occur but I think this is the most likely cause of his death.7

When deposed on July 28, 2016, Dr. Azan testified he did not see the employee on the day he died and that he "really didn't know what happened".8 When presented with a hospital discharge summary he dictated on November 30, 2015, outlining multiple diagnoses and listing first "cardiogenic shock, probably relating to an acute myocardial infarction without survival" Dr. Azan testified that his prior opinion was "speculation," could not be proven, and that the employee's death might also have been due to a pulmonary embolus.9

Employer produced the deposition of cardiologist Dr. William Farrar. Based on his review of the employee's electrocardiogram records on and prior to the employee's death on November 13, 2015, Dr. Farrar opined that the employee's cause of death was "almost certainly an acute myocardial infarction."10 He stated that on November 13, 2015, "[The employee] sustained an acute inferior wall myocardial infarction that was complicated by cardiogenic shock and ultimately he died from that."11 Dr. Farrar stated that the employee's death was caused by underlying coronary artery disease related to his high blood pressure, high cholesterol and other possible unknown factors. He acknowledged that conditions the employee suffered from as a wheelchair bound paraplegic, including psychosocial stress, contributed to the employee's death. However, Dr. Farrar unequivocally stated that the medical conditions the employee developed as a paraplegic as a result of his August, 2011, work accident did not constitute prevailing factors causing his death.12

After careful consideration, we find Dr. Farrar's expert opinion to be the most credible evidence on the issue of medical causation of the employee's death on November 13, 2015. We deny the claimants' claim for death benefits relating to the employee's work injury. Remaining issues related to the claimants' amended claim are moot.

Conclusion

We modify the award of the ALJ to terminate employer's liability for future medical care, including replacement of carpeting with linoleum in the employee's home as of November 13, 2015, the date of the employee's death.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued October 15, 2015, is attached hereto and incorporated herein to the extent not inconsistent with this decision.

7 September 14, 2016, Transcript, 959.

8 Id. 981.

9 Id. 882, 981.

10 Id. 1036.

11 Id. 1053.

12 Id. 1058.

**Employee:** Jesse Marquess, deceased

---

The Commission approves and affirms the ALJ's allowance of an attorney's fee herein as being fair and reasonable.

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

We deny the claimants' amended claim for death benefits in connection with the employee's August 27, 2011, compensable injury.

Given at Jefferson City, State of Missouri, this **14th** day of June 2018.

---

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

---

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

---

Attest:

Secretary

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

I did not participate in the November 14, 2017, oral argument in this matter, held prior to my appointment to the Commission. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered 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 (ALJ) regarding application of the penalty provided for in § 287.120.5 should be reversed.

As stated in the employer's application for review and persuasively argued in its brief, employer is entitled to a 50% reduction in benefits due to employee's failure to obey employer's safety rule pursuant to § 287.120.3. Employer adopted a rule requiring tanker drivers to follow the rules of third party sites, including specifically requiring tanker drivers to use a "gantry" to access the top hatches of trucks to load and unload the truck. Employer also required employees subject to falling over six feet to use fall protection.

As employer's counsel notes, because there is no evidence of any prior failures to comply with employer's rules, there was no reasonable basis for employer to make further effort to ensure compliance. That said, the employer in this case unquestionably made a reasonable effort to train its employees regarding its safety rules and to monitor their compliance. Employer posted a notice that advised employees of the need to use of a harness and lanyard when subject to a fall of six feet or more. Employer also produced training logs documenting safety training. Employer's records show that employee Jesse Marquess regularly completed training in "Fall Protection" as recently as 2011, the year of his injury.

All Fisher Concrete employees, including Mr. Marquess, had actual knowledge of employer's safety rules. The employee testified that he had picked up fly ash at AECl in Thomas Hill, employer's third party site, up to three times a week for approximately five years and had used the gantry every single time except the day of his accident. He freely admitted that his accident was the result of his failure to obey employer's safety rules. Employee testified he does not have a clue as to why he did not use the gantry that day and that "it was nothing but a damn mistake."

The majority cites the case of *Elsworth v. Wayne County, Missouri*, No SD34919 (Mo. App. S.D. April 24, 2018) in support of its decision that the safety rule violation penalty provided for in § 287.120.3 should not apply in this case. *Elsworth* focused on the employer's failure to make a reasonable effort to cause its employees to obey its safety rules or use safety devices by efforts to train employees and monitor compliance. The court noted that the only evidence of that employer's safety training "were vague statements that [the employee] had accompanied or been accompanied by other drivers on a few occasions." The employer in *Elsworth* provided no specific or general training.

13 Employer/insurer's Exhibit 1, Transcript of June 26, 2015 hearing, 5064.

14 Employer/insurer's Exhibit 2, Id., 5065.

15 Id. 26.

Injury No.: 11-068578

Employee: Jesse Marquess, deceased

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regarding the vehicle the employee drove. The facts upon which the *Elsworth* holding is based are in stark contrast with evidence in this case which demonstrates that the employer provided written notice of safety rules and documented regular training provided to its employees, including Mr. Marquess specifically relating to fall protection.

Based on employee's violation of employer's safety rules, employer is entitled to a 50% reduction in all benefits, including but not limited to temporary total disability, permanent total disability and all medical benefits.

I concur in the majority's finding that the dependent claimants failed to meet their burden of proving that the employee's work injury was the prevailing cause of his death due to myocardial infarction more than four years later, as required by § 287.020.3(1) and (2), RSMo.

Reid K. Forrester, Member

Employee: Jesse Marquess

Dependents:

Employer: Fischer Concrete Services, Inc.

Insurer: Regent Insurance Company

Additional Party: University of Missouri Healthcare

Hearing Date: June 26, 2015

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/cs

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: August 27, 2011.
5. State location where accident occurred or occupational disease was contracted: Randolph 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 was opening the hatch on the top of his truck to allow it to be filled with fly ash when employee fell to the ground.
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, back, spinal cord, body as a whole.
14. Nature and extent of any permanent disability: permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 67,592.84.
16. Value necessary medical aid paid to date by employer/insurer? Unknown.
17. Value necessary medical aid not furnished by employer/insurer? Unknown.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Marquess

Injury No. 11-068578

1. Employee's average weekly wages: 909.20.

1. Weekly compensation rate: 606.13 for temporary total disability and permanent total disability.

1. Method wages computation: See award.

COMPENSATION PAYABLE:

1. From Employer:

Employer and Insurer are ordered to pay Claimant the amount of $63,937.37 for underpayment of temporary total disability benefits through October 24, 2015.

Employer and Insurer are ordered to pay Claimant weekly permanent total disability benefits of $606.13 per week, beginning October 25, 2015, for Claimant's lifetime.

Employer and Insurer are also ordered to provide Claimant with future medical benefits to cure and relieve Claimant from the effects of the work-related injury, pursuant to Section 287.140 RSMo.

As a part of Employer-Insurer's duty to provide Claimant with future medical benefits, Employer and Insurer are specifically ordered to replace the carpet in Claimant's bedroom and living room with linoleum floor covering to allow Claimant proper use of his wheelchair.

Employer and Insurer are also ordered to pay directly to University of Missouri Healthcare the amount of $572.06 pursuant to the APPLICATIONS FOR DIRECT PAYMENT.

Claimant's attorney, Jerry Kenter, is allowed 25% of the $63,937.37 in additional temporary total disability benefits, as well as 25% of the future weekly permanent total disability benefits as and for necessary attorney's fees.

WC-32-R1 (6-81)

Page 2

Employee: Jesse Marquess

Dependents:

Improper: Fischer Concrete Services, Inc.

Insurer: Regent Insurance Company

Additional Party: University of Missouri Healthcare

Hearing Date: June 26, 2015

Injury No. 11-068578

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The evidentiary hearing in this case was held in Sedalia on June 26, 2015. Employee, Jesse Marquess, appeared personally and by counsel, Jerry Kenter; Employer, Fischer Concrete Services, Inc., appeared by corporate representative Joseph Fischer, and by counsel, Kendra Oakes. Insurer, Regent Insurance Co., appeared by counsel, Kendra Oakes. University of Missouri Healthcare appeared by counsel, Robert Hinson. The record was held open thirty days for the potential submission of additional evidence. Post-hearing briefs were filed on August 15, 2015. The hearing was held to decide the following issues:

1. Claimant's average weekly wage and compensation rates;
2. Whether a safety penalty shall apply to reduce Claimant's benefits, and, if so, the percentage of such reduction;
3. If a safety penalty applies, whether the reduction of benefits applies to medical charges;
4. Employer's liability, if any, for future medical benefits pursuant to Sec. 287.140, RSMo;
5. The amount of underpayment, if any, of temporary total disability ("TTD") benefits;
6. The amount of overpayment, if any, of temporary total disability ("TTD") benefits;
7. The amount of overpayment, if any, of medical charges;
8. Whether the amount of overpayment (if any) of medical charges shall entitle Employer to an offset or credit against future or past disability payments;
9. Whether Employer is entitled to an offset or credit against future or past disability payments for any portion of the cost of the handicapped-accessible van;
10. Employer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
11. Employer's liability, if any, to reimburse Claimant's wife for nursing and/or custodial services; and

WC-32-81 (B-81)

Page 3

1. Employer's liability, if any, for repairs and/or modifications to Claimant's home.

The parties stipulated to the following:

1. The Missouri Division of Workers' Compensation has jurisdiction to hear this case;
2. Venue for the hearing is proper in Randolph County and adjoining counties; the parties agreed to a change of venue to Pettis County;
3. The claim for compensation was filed within the time allowed by the statute of limitations;
4. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. Jesse Marquess ("Claimant") sustained an accident arising out of and in the course of his employment with Fischer Concrete Services, Inc. on August 27, 2011, in Randolph County, Missouri;
6. The notice requirement of Section 287.420 does not serve as a bar to the claim for compensation; and
7. Regent Insurance Company fully insured the Missouri Workers' Compensation liability of Fischer Concrete Services, Inc., at all relevant times.

The evidence included the testimony of Jesse Marquess ("Claimant") as well as the deposition testimony of Claimant; the testimony of Patricia ("Pat") Marquess, Claimant's wife of 41 years; the testimony of Daniel Patterson, Claimant's former co-worker, as well as the deposition testimony of Daniel Patterson; the testimony of John Yewell, Employer's former safety manager, as well as the deposition testimony of John Yewell; the deposition testimony of Joseph Fischer, Employer's president; the deposition testimony of Tony Wesselman, vicepresident and general manager of Employer; the deposition testimony of Virginia Hayslip, office manager for Employer; the deposition testimony of Dr. Mosbah Kreimid; the deposition testimony of Dr. Michael Acuff; the report and deposition testimony of Gini Toyne, R.N.; narrative medical report of Dr. Allen Parmet; voluminous medical records; medical bills; Employer's Employee Handbook; wage statement; letters of guardianship of minor Haley Ann Marquess; photographs; correspondence; notice posted by Mr. Yewell; Insurer's payment history; training logs; medical fee dispute documentation.

Jesse Marquess ("Claimant") was born on May 30, 1955. Claimant has an 11th grade education. Claimant's work history includes driving a tow truck and working in a tire store. Claimant worked at the Payless Cashways Warehouse in Sedalia, Missouri, for about ten years. Claimant began working for Fischer Concrete Services, Inc. ("Employer") on May 15, 2005, driving a cement mixer ("ready-mix truck"). After about ten months, Claimant switched to driving the "pneumatic tanker" type truck, hauling fly ash or Portland cement. This is the type of truck Claimant was driving at the time of the accident on August 27, 2011; Claimant had been driving the pneumatic tanker exclusively for over five years.

At all times relevant herein, Employer's business was producing ready mix concrete and delivering it via the ready-mix trucks to job sites; Employer had locations in Sedalia, Warsaw, Clinton, Warrensburg, Marshall, Boonville and Tipton. At all times relevant herein, Employer had 50 to 55 ready-mix trucks, but only had three ${ }^{1}$ of the pneumatic tanker trucks. While Claimant was based out of Employer's Sedalia location, he was seldom there. His sole job as one of the pneumatic tanker drivers was to drive to cement plants to get a load of Portland cement and bring the load back to one of Employer's locations, or to drive to the Thomas Hill Power Plant in Randolph County to get a load of fly ash and bring the load back to one of Employer's locations.

The pneumatic tanker has a large metal tank with three hatches on top; the dry product (Portland cement or fly ash) enters through one of the top hatches. As the tank has a blower to disperse the product throughout the tank, only the center hatch needs to be utilized to fill the tank with the dry product. (The dry product is unloaded through openings at the bottom of the tank.) When one of Employer's pneumatic tanker drivers (such as Claimant) would go to a cement facility, or to Thomas Hill Power Plant, it was the driver's responsibility to open the center hatch on the top of the truck before proceeding to the loading area. The loading was done robotically; this process was managed by an employee of the facility. After the loading was completed, the driver was responsible to close the hatch.

The top of the tank, where the hatch is located is about 9 feet from the ground. There is a ladder on the outside of the tank. However, Thomas Hill Power Plant has a permanent gantrylike device on its premises which the drivers can use to access the hatch. This type of device apparently has many nicknames, including "gantry", "caboose", "drawbridge", "diving board", "catwalk" and "gallows"; for consistency I will refer to it simply as "gantry". There are photographs in evidence of the gantry at Thomas Hill Power Plant. ${ }^{2}$ Tony Wesselman's description of the gantry as "a set of steps built in the middle of a parking lot" appears to be accurate. The gantry is made of metal and the steps have a railing on both sides. At the top of

[^0]

[^0]: ${ }^{1}$ John ("JW") Yewell, Employer's former safety manager, testified that there were three such trucks; Joseph Fischer, Employer's president indicated there were four such trucks.

${ }^{2}$ The evidence was that there were two gantries at the Thomas Hill Power Plant - one on the approach to the fly ash dispensing area (for opening the hatch), and one past the fly ash dispensing area (for closing the hatch) - but the former was disabled or was otherwise not functioning on and prior to August 27, 2011, and drivers such as Claimant would have been required to use the latter both for opening and closing the hatch. It is assumed that the photographs in evidence are of the functioning gantry.

**Employee:** Jesse Marquess

**Injury No. 11-068578**

The steps is a platform with railings, and at the edge of the platform facing the driveway there is a three or four step ladder. Above that ladder is a metal "cage" that has four sides, but no top or bottom. The driver is to drive the truck so that the hatch is directly in line with the ladder. The top of the truck then becomes the "floor" of the cage. The driver then exits the truck and walks up the stairs to the platform, then up the ladder to access the hatch (to open or close it).

At all times relevant herein, there was a large sign at the Thomas Hill Power Plant which read:

- FLY ASH DRIVERS

- AND OUTSIDE PERSONNEL

- WHILE ON AECI PROPERTY PERSONAL PROTECTIVE

- EQUIPMENT MUST BE WORN AT ALL TIMES

- THIS INCLUDES HARD HAT, SAFETY GLASSES, GLOVES, AND STEEL TOE FOOT WEAR.

- ALL DRIVERS MUST USE TRUCK/TRAILER

- ACCESS PLATFORMS

- VIOLATORS SUBJECT TO SUSPENSION

- FROM AECI PROPERTY

("AECI" is "Associated Electric Cooperative, Inc.", owner of the Thomas Hill Power Plant.) Claimant testified that he was aware that Thomas Hill Power Plant had this sign. Claimant testified that he was aware that Thomas Hill Power Plant had a functioning gantry. Claimant testified that he was aware that the cement plants each had functioning gantries. Claimant testified that he was fully aware that it was Thomas Hill Power Plant's "rule" that the gantry must be used to access the hatch, both when opening the hatch and when closing the hatch. He also testified that he knew the cement plants had the same "rule".

**Accident of August 27, 2011.** On that date, Claimant was to pick up fly ash at the Thomas Hill Power Plant. Although Claimant usually worked alone, on that date one of Employer's other pneumatic tanker drivers, Daniel Patterson, was making the same runs as Claimant. Patterson worked out of Employer's Warrensburg location. Patterson drove his tanker from Warrensburg to Sedalia. Both drove their respective tanker trucks to Hannibal, where they each picked up a load of cement; they then drove to Employer's Boonville location and unloaded the cement from both trucks. Then they drove from Boonville to the Thomas Hill Power Plant to pick up fly ash. On the route from Boonville to Thomas Hill, Claimant's truck was in the lead and Patterson was following, less than a mile behind. They communicated along the way by CB radio.

A few minutes prior to Claimant's arrival at the Thomas Hill Power Plant, Claimant radioed Patterson and suggested that, once inside the gates of the plant, each would "pull off to the side", and each would utilize the ladder on his truck to open the hatch, and then proceed to

**Employee:** Jesse Marquess

**Injury No. 11-068578**

The fly ash dispensing area. Patterson testified that he believes he told Claimant that this "wasn't a good idea", although Patterson admitted that he decided he would go along with the idea. Upon entering the grounds of the Thomas Hill Power Plant, Claimant did, indeed, pull his truck off to the side, and Patterson did likewise. Patterson testified that he saw Claimant walking, "taking himself to his ladder as I was pulling up, and I had it in my mind I would do the same thing, and so I got out of my truck and walked to the end of my trailer, and I got there and something came over me, and I decided not to get up. So I walked back to the front of my truck, and I noticed Jess wasn't there so I figured he was in his truck. So I climbed up in mine, and when I sat down I could see him laying on the ground." Claimant had climbed the ladder on his truck to open the hatch. Claimant fell to the ground, sustaining injuries.

**Treatment, injuries, condition.** Claimant was immediately air evacuated to the University of Missouri Hospital in Columbia. He was found to have sensory loss from T4 down. On September 1, 2011, he was taken to surgery where a thoracic decompression was performed from T1 through T6 but it could not be completed due to breathing problems. On 9/14/11 a tracheotomy for chronic respiratory failure was performed at the University Hospital. On 9/23/11 Claimant underwent a posterior fusion from C7 to T5 with bone grafting and a laminectomy. On 9/27/11 he underwent a surgical debridement of a decubitus ulcer. Claimant continues to have considerable problems with decubitus ulcers.

On September 29, 2011, Claimant was admitted to the Missouri Rehabilitation Center in Mount Vernon, Missouri. He was treated by Mosbah Kremid, M.D., a pulmonologist and internal medicine specialist. Dr. Kremid testified that Claimant was sent to Mount Vernon for wound care and breathing problems. He was to be weaned off a ventilator. Claimant was initially taken off the ventilator but developed a wound infection and a collapsed lung. He subsequently had to be put back on the ventilator, and at this point in time he was sent to St. John's Mercy Hospital in Springfield for debridement of the wound.

Claimant has C7-8 tetraplegia. He has a complete spinal cord injury that prevents any motor or sensory nerve impulses from passing that area; there is no sensation or voluntary motor control below the level of the armpits (approximately). Claimant has no bowel or bladder function. Claimant can use his arms, but has no use of his lower extremities whatsoever. Claimant suffers from respiratory failure, neurogenic bladder, chronic renal infections, and chronic neuropathic pain. Dr. Allen Parmet certified that Claimant is permanently and totally disabled as a result of the August 27, 2011 accident; there was absolutely no evidence to the contrary.

**Safety penalty.** There is a letter dated September 7, 2011, written to Claimant in care of his attorney. The letter is signed by "Kimberly Bougher, WCLA, CMSP, RCU Claim Analyst". This letter reads:

Dear Mr. Marquess:

This letter concerns the workers' compensation claim that was submitted to QBE regarding the fall on August 27, 2011.

WC-32-R1 (8-81)

Page 7

**Employee:** Jesse Marquess

**Injury No. 11-068578**

Per your attorney request, I have enclosed a copy of the wage statement provided to us by Fischer Concrete. We have figured your average weekly wage at 973.67 with the temporary total disability (TTD) rate at 649.12.

Our investigation of this fall revealed you violated safety rules both for Fischer Concrete and The Thomas Hill Power Plant. According to Missouri Worker's (sic) Compensation Law Section 287.120 paragraph 5, failure of the employee to obey any reasonable rule adopted by the employer for the safety of the employee, the compensation shall be reduced not more than 50%.

Due to this safety violation, QBE will be paying the weekly TTD at $324.56. We will be sending the payments to your house due to convenience for your wife to deposit the money.

Copy of the medical records will be sent to your attorney under separate cover.

Insurer has paid approximately 50% of the TTD benefits each week. Regarding the medical charges for Claimant's treatment, Insurer has re-priced all of the medical charges and has paid only 50% of the re-priced amount for most of the medical charges.

Joseph Fischer is Employer's president, Tony Wesselman is Employer's vice-president and general manager, Virginia Hayslip is Employer's office manager, and John Yewell is Employer's former safety manager. Each was asked whether he/she had spoken to the Insurer about a penalty and each answered in the negative.

**Section 287.120.5, RSMo, states:**

Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.

"The workers' compensation statutes provide a no-fault system of compensation for workers." *Bi-State Development Agency v. Watson*, 40 S.W.3d 403, 405 (Mo. App. E.D. 2001). Whether that is still true today is the subject of much debate; nevertheless, the first sentence of Section 287.120.1, which states:

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 personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment. (Italics added for emphasis.)

WC-32-R1 (6-81)

Page 8

**Employee:** Jesse Marquess

**Injury No. 11-068578**

suggests that it is at least partly true; i.e., an injured employee need not prove negligence in order to receive "compensation" under the provisions of Chapter 287. In this case, irrespective of negligence, Claimant should be receiving $606.13 each week for total disability, and Claimant would not be responsible for the payment of any of his medical bills. Insurer's position is that Claimant (because of his negligence) forfeits half of his weekly benefits (approximately $500,000 over his expected life span), and should be responsible for payment of half of his medical costs ($1.7 million and counting). "The law abhors forfeitures, and courts will indulge in no presumption to aid them." *Johnson v. Kansas City Life Insurance Co.*, 166 Mo. App. 261 (Mo. App. K.C. 1912).

Section 287.120.5 is a forfeiture provision; like all of chapter 287 it must be strictly construed, and since it is a forfeiture provision, no presumptions can be employed to trigger the forfeiture.

The first clause of Section 287.120.5 ("[w]here the injury is caused by the failure of the employee to use safety devices where provided by the employer") is simply inapplicable here. The allegation in the 9/7/11 letter is that Claimant violated "rules"; furthermore, while there has been much made about harnesses and lanyards, Employer quite simply did not provide same to Claimant and to the other pneumatic tanker drivers when they were on the road. "The failure of Claimant to use safety devices" is simply inapplicable to this case.

Thus, focusing on the applicable portion of Section 287.120.5, all of the following must be found in order to trigger the forfeiture:

1. Employer adopted a reasonable rule for the safety of employees;
2. Claimant's injury was caused by his failure of the employee to obey the safety rule;
3. Claimant had actual knowledge of the rule; and
4. Prior to the injury Employer had made a reasonable effort to cause its employees to obey the safety rule.

See *Carver v. Delta Innovative Services*, 379 S.W.2d 865 (Mo. App. W.D. 2012).

As Section 287.120.5 is a penalty or forfeiture provision, it is not simply a "be safe" or "be careful" or "don't take risks" or "don't do anything stupid" provision. Section 287.120.5 requires a "rule" - specifically mandating or prohibiting certain actions. A "rule", when broken, has certain consequences, sanctions or punishments; if not, it can hardly be a "rule" - it is a suggestion, a wish, a cross of the fingers. Surprisingly, Section 287.120.5 does not require that such a rule be written. One would assume that an important safety rule - particularly a rule whose violation could cause an employee to forfeit hundreds of thousands of dollars in benefits - would be a written rule, but the statutory provision in question imposes no such requirement.

It is almost certain that Claimant failed to obey a written rule - but that written rule was Thomas Hill Power Plant's rule, expressed on a large sign which Claimant acknowledges as having seen and read, which sign states in part: "FLY ASH DRIVERS AND OUTSIDE PERSONNEL - ALL

3 Claimant admits that he did not follow AECl's posted rule to use the gantry, and that he was "stupid" in this regard.

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Marquess

Injury No. 11-068578

DRIVERS MUST USE TRUCK/TRAILER ACCESS PLATFORMS - VIOLATORS SUBJECT TO SUSPENSION FROM AECl PROPERTY". AECl, owner of Thomas Hill Power Plant, was not Claimant's employer. So, while a violation of AECl's rule might be unsafe, risky and extremely stupid (and would likely result in Claimant's "suspension from AECl property"), it would NOT cause Claimant to forfeit his workers' compensation benefits -- unless Employer had "adopted" it.

Did Employer adopt AECl's rule? Specifically, did Employer adopt AECl's rule: "ALL DRIVERS MUST USE TRUCK/TRAILER ACCESS PLATFORMS"? If so, how was that "rule" communicated? Here is the pertinent testimony of those responsible for adopting Employer's rules and communicating them.

Joseph Fischer, Employer's President

Q. Okay. Now, I take it that you have nothing to do with this device, do you?

A. No, sir.

Q. It's not a rule of your company that the device has to be used, correct?

A. The rule of the company would be that he has to use -- do what they ask him to do.

(Exhibit G, page 21).

Tony Wesselman, Employer's Vice President and General Manager

Q. Okay, you heard Mr. Fischer talk about safety rules?

A. Yes.

Q. And I believe he testified that the safety rule of Fischer Concrete is basically whatever the safety rule is for AECl?

A. Um-hum.

EMPLOYER'S COUNSEL: I'm not sure that's exactly what he said.

Wesselman: On their property.

Q. Yes.

A. Yeah.

Q. Let me rephrase it. The only safety rule that Fischer has in regard to this loading on AECl's property is the safety rule of AECl whatever it is?

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Page 10

A. We have our own rules, hard hat, steel-toed boots, safety glasses, things like that that they adhere to when they're working for us and they're out of their truck on a deal.

Q. Okay.

A. As related to the drawbridge, yes, our drivers are expected to adhere to other people's rules whether they're there or whether they're at another cementitious facility.

(Exhibit H, pages 30-31).

Q. Okay. Now, there's nothing posted in any of your facilities that tells the drivers "when you're on AECl's property, you follow their rules"?

A. Not that I'm aware of.

Q. Okay. And that's told to the drivers at the safety meetings; is that correct?

A. There again I can't answer where JW might have told them that.

Q. But at any rate that rule that "you are to follow AECl's rules" is a verbal rule of Fischer's?

A. It would be a verbal rule.

Q. Okay. And you just don't know how frequently that's repeated?

A. That's correct.

(Exhibit H, pages 32-33).

Q. Now, whose rule is it that he has to use the gantry to get up and start this process, is it Fischer's rule or AECl's rule?

A. It is their rule.

Q. You mean AECl's rule?

A. That is correct.

Q. So Fischer didn't have a rule to him that says you've got to use the gantry, right?

A. I don't -

Q. Okay. You have told me that it is AECl's rule that he's got to use this gantry or walkway when he gets up there with the truck, right?

A. Correct.

Q. So Fischer never gave him a rule, never issued a rule or you never did, as safety director, say that you've got to use the gantry?

A. Okay. They have been briefed and trained if they go - I'll use an example of a safety vest, you use a safety vest when you're pouring concrete, subject to traffic, stuff like that. But if you go to a job where a safety vest is required, you put on a safety vest. Same way with hard hats, stuff like that. I mean you follow the rules of the other contractors.

Q. Okay. So, now, you correct me if I'm wrong here, I don't want to put words in your mouth. Okay?

A. Okay.

Q. If he was trained that if he went up there and they had a safety rule, he was to follow that safety rule?

A. That's correct.

Q. And it's their rule, it's AECl's rule, correct, to use that gantry?

A. Yes, that's correct.

(Exhibit I, pages 15-16).

Q. So the next question is: the rule he violated that day, that you believe he violated that day from Fischer, was that he didn't use the harness?

A. The rule he violated he didn't use the gantry.

Q. Okay.

A. If you're on somebody else's property, you go by their rules.

Q. Okay. So as safety director, it's your opinion that the rule he violated that day is he didn't use the gantry?

A. That's correct.

(Exhibit I, page 18).

Q. Okay. Now, would you have safety meetings?

A. Yes.

Q. How frequently?

A. We try to have them at least quarterly. A lot of times I could not catch up with them, so I would send out flyers like this.

Q. Okay. Like Exhibit 1?

A. What, have you got Exhibit 1? Yes, correct.

Q. And what was discussed at these safety meetings?

A. Different topics, as in fall protection, hard hat, cold weather, doing D.O.T. paperwork.

Q. Okay. And that was directed to all your drivers; is that right?

A. That's correct.

Q. Okay. Now, you were in charge of the meetings at the Sedalia plant, is that where you were?

A. That's correct.

Q. And he was the only driver that went up to this location; is that right?

A. From the Sedalia plant.

Q. Yes.

A. That's correct.

Q. Did you ever discuss the use of the gantry with him at any of these meetings?

A. No, sir.

Q. Did you know that the gantry was there before this accident?

A. Yes, sir.

Q. Okay.

A. Well, I knew there was some type of device. I didn't know that particular one. So yeah, the answer is yes.

Q. And did you know that it was an AECI rule before this accident that whoever was up there had to use that device?

A. Yes.

Q. Okay. And how did you know that?

A. If it's there and it's available - well, I guess I don't understand. Reword that for me.

Q. Okay. You had never been up to AECI before this accident, correct?

A. Correct.

Q. But you knew there was a gantry up there; is that correct?

A. That's correct.

Q. You had never seen the signs that are in Exhibit 3, correct?

A. Exhibit - no, that is correct.

Q. Okay. So, you didn't know as of 8/27/11 that it was AECI's rule that you have to use the gantry, right?

A. You've got it pretty broad there. My brother is a tanker operator and he would talk about that and he would say they have to use the gantry for loading procedures.

Q. Okay. Well, that's how you knew about it then?

A. Yes.

Q. Okay, well that answers my question.

A. Okay.

Q. Okay, but you never specifically told Jesse "you've got to use the gantry"; you told him" if there's rules up there, you got to follow them"?

A. That's correct.

(Exhibit I, pages 20-22).

From the testimony of the Employer's President, Vice-President/General Manager, and Safety Manager, I conclude that the "reasonable rule adopted by the employer for the safety of employees" that Claimant allegedly violated was "use the gantry". I conclude that this "rule" was not written; at best it was "a verbal rule". The communication of this "rule" to Claimant was done (orally) at safety meetings. There was never any mention of a gantry (under any of its nicknames) at any safety meeting. There was never any mention of the use of a gantry at safety meetings. The rule "use the gantry" was communicated to Claimant by telling him, essentially, "when you're on someone else's property, follow their rules". Prior to Claimant's accident, Employer's President, Vice President/General Manager, and Safety Manager was not aware that AECI had a sign which contained the rule Employer claims to have adopted.

In short, prior to Claimant's accident, had Employer really adopted the rule: "use the gantry"? Is telling Claimant "when you're on someone else's property, follow their rules" communication of a specific safety rule, the violation of which triggers a huge forfeiture? Or is it simply a suggestion, akin to "be safe" or "don't do anything stupid"?

If the rule "use the gantry" was, in fact, adopted by Employer, what consequences, sanctions or punishments did Employer have for its violation? Prior to Claimant's accident, Employer was not even aware that AECI had posted such a rule; if any of Employer's pneumatic tanker drivers had serially violated the rule, how would Employer have known?

Finally, had Employer prior to Claimant's injury "made a reasonable effort to cause its employees to obey the 'use the gantry' rule"? Section 287.808 states:

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

The burden of proof of establishing, factually, all of the elements of Section 287.120.5 is clearly on Employer. Employer's President, Vice President/General Manager, and Safety Manager could not articulate any reasonable efforts Employer made to cause its employees to obey the "use the gantry" rule, other than telling the pneumatic tanker drivers at safety meetings "when you're on someone else's property, follow their rules".4

I find that Employer had not adopted a "use the gantry" rule. I find that Employer, prior to Claimant's accident, had not made reasonable efforts to cause its employees to obey a "use the gantry" rule. No penalty can be assessed under Section 287.120.5.

---

4 As pertains to Claimant, there were not "quarterly safety meetings". Employer-Insurer's Exhibit 2 indicates that Claimant met with Safety Director Yewell twice in 2006 (January 24 and March 8), twice in 2007 (March 13 and November 17), three times in 2008 (January 16, August 11 and October 29), twice in 2009 (January 30 and June 11), twice in 2010 (January 11 and May 10), and on January 27, 2011. Of course, there is no record that Claimant was told "when you're on someone else's property, follow their rules" on each of those occasions.

WC-32-R1 (6-81)

Page 15

**Employee:** Jesse Marquess

**Injury No. 11-068578**

Exhibit P, the September 7, 2011 letter from Insurer's Claim Analyst Kimberly Bougher (quoted in full above) stated that Insurer had figured Claimant's AWW at 973.67 and compensation rate (for total disability benefits) at 649.12. Exhibit R is a wage statement. Per Exhibit R, the average weekly wage is 909.20, and the compensation rate for TTD and PTD benefits is 606.13. Exhibit R actually contains the record of Claimant's gross wages for the 14 full weeks immediately preceding the accident. Using the thirteen full weeks immediately preceding the accident, Claimant's AWW is 909.20, and the compensation rate is 606.13. Exhibit R is somewhat confusing, in that there are thirteen weeks listed in the "printout" portion; however, that portion is missing the information for payroll date of 7/22/2011. Virginia ("Ginny") Hayslip, Employer's office manager, wrote the 7/22/2011 payroll information in longhand toward the bottom of Exhibit R. It is apparent to me that Claim Analyst Bougher totaled all 14 weeks' information, but divided by 13, to arrive at an AWW of $973.67. Using only the last 13 weeks (i.e., ignoring the information from payroll date 5/27/2011), the total is 11,819.61, and the AWW is 909.20.

The evidence is clear and unequivocal that Claimant will require significant medical care for his lifetime to cure and relieve him from the effects of the injuries that he sustained on August 27, 2011. At a bare minimum he requires daily nursing assistance, medical monitoring and treatment of his chronic decubitus ulcers, medical monitoring and treatment of his respiratory problems, and medical monitoring and treatment of his bowel and bladder insufficiencies.

The evidence is clear and unequivocal that Claimant suffers from permanent C7-8 tetraplegia. Dr. Allen Parmet certified that Claimant is permanently and totally disabled as a result of the August 27, 2011 accident, and there was absolutely no evidence to the contrary. An extended discussion of Claimant's disability issues serves no purpose in this case.

No penalty applies against Claimant's benefits in this case, thus there have been no overpayments made by Employer-Insurer, and the issue of offsets or credits is moot.

Employer-Insurer's Exhibit 3 is a history of payments made by Insurer to Claimant and to the health care providers. Although the hearing was held on June 26, 2015, Exhibit 3 shows TTD payments "made" (i.e., scheduled to be made) through October 24, 2015. TTD payments were made from August 28, 2011, through November 12, 2011, (eleven weeks) at the rate of $324.56. TTD payments were made from November 13, 2011, through May 24, 2014, (132 weeks) at a rate of $303.07. TTD payments were made (or were scheduled to be made) from May 25, 2014, to October 25, 2015, (74 weeks) at the rate of 324.56. Therefore, through October 24, 2015, Insurer has paid 67,592.84 in TTD benefits. Using the correct TTD/PTD rate of 606.13 (without reduction for penalty), the 217 weeks of benefits totals 131,530.21. Insurer has underpaid TTD benefits through October 24, 2015, in the amount of $63,937.37.

In order to receive an award of compensation for care provided by a spouse, an employee must prove that the

WC-32-R1 (6-81)

Page 16

**Employee:** Jesse Marquess

**Injury No. 11-068578**

services being rendered are in addition to the spouse's ordinary household duties, that the employer had actual or constructive notice of the employee's need for those nursing services, and that the employer either refused or otherwise failed to provide those nursing services. See *Breckle v. Hawk's Nest, Inc.*, 980 S.W.2d 192, 194 (Mo. Ct. App. 1998). Spousal nursing care awards must be based on more than mere speculation. *Jerome v. Farmers Produce Exch.*, 797 S.W.2d 565, 567 (Mo. Ct. App. 1990). The employee must present detailed evidence of the tasks performed by the spouse and the average time spent on the task each day. See *Long v. City of Hannibal*, 670 S.W.2d 567 (Mo. Ct. App. 1984); *John Hoff v. St. Clair R-XIII Sch. Dist.*, Injury No. 00-081801, 2011 WL 566142 (LIRC 2011).

Claimant has failed to make a claim for reimbursement for nursing care provided by his wife. He has failed to identify specific dates and hours of service, or the average time spent on each task each day. Mrs. Marquess simply testified she provided care for her husband 24 hours a day, which is unrealistic and unreasonable, especially considering Employer has provided professional home health services for five hours per day. Claimant's wife would have slept and performed ordinary household duties for many of those hours. Claimant has also been hospitalized numerous times; there would have been no compensable care provided by Claimant's wife during periods of hospitalization. Mrs. Marquess also cares for their granddaughter who lives with them, which is time not spent caring for Claimant. Furthermore, Dr. Acuff testified that Claimant does not require 24-hour care. Claimant failed to provide evidence of the specific times related to specific tasks were provided by his wife to support his claim.

Furthermore, Employer-Insurer has provided the services of professional home health care. Claimant already receives a total of five hours of home health care each day, which is in accordance with the recommendation of Dr. Acuff, Claimant's treating physician. Claimant apparently alleges there was a period of time that home health care services were not provided by Employer-Insurer, but he failed to specify when that time period was or that Employer-Insurer had refused or otherwise failed to provide appropriate services during a specific time period. Claimant failed to present medical evidence that the nursing services provided by Employer-Insurer are insufficient or that Claimant needs care in excess of the care provided by Employer-Insurer.

Claimant also failed to provide any evidence regarding a demand for those services which was refused by Employer-Insurer. In short, Claimant has failed to satisfy his burden of proof on this issue.

**Employer's entitlement to offset or credit for a portion of cost of handicapped-accessible van.** Employer-Insurer's brief stated that Employer was NOT asking for an offset or credit based upon the cost of the van being in excess of the cost of a mid-sized sedan plus the cost of the wheelchair lift, as established by *Mickey v. City-Wide Maint.*, 996 S.W.2d 144 (Mo. App. W.D. 1999); Employer is only requesting an offset/credit for the alleged safety penalty. As no safety penalty applies, no offset/credit is awarded.

**Requested repairs/modifications to Claimant's home.** Claimant is requesting that Employer-Insurer provide a trapeze-style lift in the ceiling above his bed. He is also requesting a

*WC-32-R1 (6-81)*

*Page 17*

*2011*

*11-068578*

**Employee:** Jesse Marquess

**Injury No. 11-068578**

portable Jacuzzi/whirlpool tub for the disabled. He is also requesting that the carpeting in the home be replaced with a different type of flooring as the carpet is being torn up by Claimant's wheelchair.

Employer and Insurer have expended at least $80,000.00 toward the building of a handicapped-accessible house for Claimant. This is the same house for which Claimant is requesting the repairs and modifications. Regarding the house, Gini Toyne, Claimant's expert witness, testified:

> Functionally, it was very nicely put together with all on one level so that all of his rooms and activities and so forth could be done at on (sic) one level without the use of going up and down to any different levels. There were wide pathways so that he could get through with his wheelchair. The kitchen area was problematic in some parts because he couldn't get - there weren't cutouts into the counters and areas and so forth, so that he could get close enough to, say, wash dishes or do any preparation on the counters themselves. And the flooring was appropriate flooring with the exception of the bedroom and the living room where there was carpeted flooring that was not conducive to the weight and friction that is put on it from the wheelchair. So there were multiple tears and worn - overly worn places in the carpet in those two rooms. (Exhibit E, pages 15-16).

Regarding the request for the trapeze-style ceiling lift, Ms. Toyne photographed the lift devices that Claimant currently uses, and briefly described them. She did not indicate that they were inadequate for Claimant's needs. She did not indicate that they did not function properly. While Claimant would apparently prefer that the lift be built into the ceiling, there is simply no evidence that the current lift devices are inadequate in any way.

Regarding the request for the Jacuzzi/whirlpool tub for the disabled, Ms. Toyne testified that her recommendation of same was not done based upon a physician's suggestion or recommendation, but "on my knowledge of the efficiency and effectiveness of those tubs in the use of paraplegics". Claimant currently has a handicapped-accessible shower, with a shower chair. Claimant is able to bathe and tend to his personal hygiene with his current shower set-up. He has an oversized shower chair and hand held hose/shower head that allows him to reach most areas of his body. The home health aide assists Claimant in bathing. With the whirlpool tub, Claimant would still require the assistance of the home health aide, according to Ms. Toyne. The advantage of the whirlpool tub would be "to have the higher-powered force from the water in all areas of the body, so that it could help to both stimulate and debride the areas where he's got the chronic decubitus ulcers and that sort of thing." (Exhibit E, page 50). The evidence of the medical necessity of the whirlpool tub is lacking, therefore, I will not order same to be provided. However, the evidence is that the whirlpool tub would be quite beneficial for Claimant, and I strongly encourage Employer-Insurer to consult with Claimant's physician regarding its medical necessity.

Regarding the request for replacement of carpeting with a surface more amenable to the use of Claimant's wheelchair, Ms. Toyne testified that a linoleum surface would work quite well

---

5 There was no evidence adduced as to the structural feasibility of installing such a device in the ceiling.

6 The evidence is that such a whirlpool tub is portable and costs $7,200.00; this appears to be reasonable.

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**Employee:** Jesse Marquess

**Injury No. 11-068578**

for Claimant's wheelchair use, and Ms. Toyne testified that the total cost would be $2,487.68. Claimant and Toyne both testified to Claimant's difficulty in maneuvering his wheelchair over the carpeting and how the carpeting is being torn up by the wheelchair. While there is not a physician's order for a specific type of flooring, Claimant has a proven medical need for a wheelchair. In *Hall v. Fru-Con Construction*, 46 S.W.3d 30 (Mo. App. S.D. 2001), the appellate court noted that the issue of modifications to Claimant's home was an "issue of first impression in Missouri." In affirming the Commission's award of home modifications, the *Hall* court cited with approval the following language from a Pennsylvania case: "if a wheelchair is necessary, then it logically follows that minor modifications needed to facilitate the use of the appliance (wheelchair) must also be considered a necessity." Employer-Insurer should be ordered to provide such "minor modifications".

Ms. Toyne testified to the desirability of certain other equipment, such as a wheelchair with a higher weight capacity, an oxygen concentrator, a different type of bed frame and mattress, and moleskin roll(s). It is unclear from the evidence whether Employer-Insurer had provided any of those items prior to the hearing, or whether Claimant was asking for a specific award of any of those items. Nevertheless, while the desirability of those items is not in question, there is no medical evidence of their necessity. As Employer-Insurer has a continuing duty to provide Claimant with all reasonable and necessary medical care, I again strongly encourage Employer-Insurer to consult with Claimant's physician regarding the medical necessity of those items.

**Medical Fee Dispute(s) of University of Missouri Healthcare.** University of Missouri Healthcare ("UMH") appeared by its attorney, Robert Hinson. At the commencement of the hearing when the issues were framed, the only issue raised concerning UMH's medical bills was "If a safety penalty applies, whether the reduction of benefits applies to medical charges." However, in his post-hearing brief, Mr. Hinson states: "(a)ccordingly, UMH is entitled to a full reimbursement from the employer for past medical services in the amount of $277,000.33." This suggests to me that UMH is requesting a ruling on the various "medical fee disputes" it has filed in this case.

UMH offered four exhibits which were received into evidence.

Exhibit 1 consists of an **APPLICATION FOR DIRECT PAYMENT** requesting $192.00 for services provided to Claimant on 11-18-2013, an additional **APPLICATION FOR DIRECT PAYMENT** requesting $380.06 for certain services provided to Claimant during various dates in 2014, as well as the actual billing records.

Exhibit 2 consists of several **APPLICATIONS FOR PAYMENT OF ADDITIONAL REIMBURSEMENT OF MEDICAL FEES** requesting an additional $34,491.28 for various services provided to Claimant in 2011, 2012 and 2013 for which partial payment had been made by Insurer, as well as the actual billing records.

*Rieger v. Workman's Comp. Appeal Board*, 521 A.2d 84 (Pa. Commonw. Court 1987).

*WC-32-R1 (6-81)*

*Page 19*

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Marquess

Injury No. 11-068578

Exhibit 3 consists of several APPLICATIONS FOR PAYMENT OF ADDITIONAL REIMBURSEMENT OF MEDICAL FEES requesting an additional $231,443.02 for various services provided to Claimant in 2011, 2012 and 2013 for which partial payment had been made by Insurer, as well as the actual billing records.

Exhibit 4 consists of an APPLICATION FOR PAYMENT OF ADDITIONAL REIMBURSEMENT OF MEDICAL FEES requesting an additional $10,699.96 for certain services provided to Claimant in March and April 2004 for which partial payment had been made by Insurer, as well as the actual billing records.

The total claimed by UMH in Exhibits A, B, C and D is (by my calculations) $277,206.32, which is approximately the same amount requested in Mr. Hinson's brief.

8 CSR 50-2.030 is entitled "Resolution of Medical Fee Disputes". The regulations contemplate two different types of Medical Fee Disputes. "Reasonableness Disputes" are initiated by filing an APPLICATION FOR PAYMENT OF ADDITIONAL REIMBURSEMENT OF MEDICAL FEES. A "Reasonableness Dispute" would be appropriate when the insurer disputes the reasonableness of the medical bill, pays the health care provider the portion the insurer deems reasonable, and the health care provider seeks additional amounts from the insurer. "Direct Pay Disputes" are initiated by filing an APPLICATION FOR DIRECT PAYMENT. A "Direct Pay Dispute" is appropriate when the employer or insurer has authorized the medical treatment, but no payment whatsoever has been made by the insurer.

Section 287.140.4 authorizes "Reasonableness Disputes". Section 287.140.4 states, in part: "The employee shall not be a party to a dispute over medical charges, nor shall the employee's recovery in any way be jeopardized because of such dispute." For this reason, the Division of Workers' Compensation adjudicates a "Reasonableness Dispute" in a hearing separate and apart from the employee's underlying workers' compensation case.

Section 287.140.13 (6) states:

A hospital, physician or other health care provider whose services have been authorized in advance by the employer or insurer may give notice to the division of any claim for fees or other charges for services provided for a work-related injury that is covered by this chapter, with copies of the notice to the employee, employer and the employer's insurer. Where such notice has been filed, the administrative law judge may order direct payment from the proceeds of any settlement or award to the hospital, physician or other health care provider for such fees as are determined by the division. The notice shall be on a form prescribed by the division.

Section 287.140.13 (6) is the basis for a "Direct Pay Dispute". As that section provides that an ALJ "may order direct payment from the proceeds of any settlement or award" to a health care

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jesse Marquess

Injury No. 11-068578

provider, the Division of Workers' Compensation generally adjudicates a "Direct Pay Dispute" as part and parcel of the employee's underlying workers' compensation case.8

$572.06 of UMH's claimed reimbursement has been filed (correctly) as "Direct Pay Disputes"; the remaining $276,000+ has been filed (again, correctly) as "Reasonableness Disputes". As the "Reasonableness Disputes" should properly be adjudicated as one or more separate actions, and not as a part of this case, no ruling will be made on those at this time.9 Regarding the $572.06 in charges filed on the APPLICATIONS FOR DIRECT PAYMENT, I find that the charges were clearly incurred by Claimant to cure and relieve him from the effects of the work-related injuries. UMH has satisfied its burden of proof as to the reasonableness of the medical charges by presenting itemized bills and medical records. *Esquivel v. Days Inn*, 959 SW2d 486 (Mo. App. S.D. 1998). Employer and Insurer shall be ordered to pay the amount of $572.06 directly to University of Missouri Healthcare.

Penalty amounts already taken against medical bills of providers other than UMH. As no safety penalty should be imposed against the medical benefits in this case, Claimant has no liability for any portion of the medical charges. To the extent that any health care provider disputes the reductions heretofore made by Insurer, those health care providers must pursue their remedy through the medical fee dispute process.

FINDINGS OF FACT AND RULINGS OF LAW

In addition to those facts and legal conclusions to which the parties stipulated, I find the following facts and make the following rulings of law:

1. Claimant sustained an accident arising out of and in the course of his employment with Fischer Concrete Service, Inc. on August 27, 2011, when he fell from his truck;
2. The work accident of August 27, 2011, is the prevailing factor in the cause of injury to Claimant, including C7-8 tetraplegia, loss of use of lower extremities, chronic decubitus ulcers, respiratory failure, neurogenic bladder, chronic renal infections, and chronic neuropathic pain;
3. Claimant is unable to compete in the open market for employment;
4. Claimant is permanently and totally disabled solely as a result of the work accident of August 27, 2011;
5. Claimant will require significant medical care for his lifetime to cure and relieve him from the effects of the injuries that he sustained in the work accident of August 27, 2011;
6. Employer and Insurer are responsible for providing Claimant with medical care for his lifetime in accordance with the provisions of Section 287.140, RSMo;

8 A "Direct Pay Dispute" is not always adjudicated as part and parcel of the employee's underlying workers' compensation case as, often, the APPLICATION FOR DIRECT PAYMENT is filed by the Health Care Provider after the underlying case has been settled, dismissed or adjudicated.

9 These will be set for hearing and adjudication at a later time upon proper motion. It is anticipated that resolution of the safety penalty issue will likewise resolve the "Reasonableness Disputes".

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**Employee:** Jesse Marquess

**Injury No. 11-068578**

1. For the thirteen full weeks prior to August 27, 2011, Claimant was paid the amount of 11,819.61, resulting in an average weekly wage of 909.20;

1. Claimant's weekly compensation rate for temporary total disability benefits and permanent total disability benefits is $606.13;

1. Insurer has been assessing a 50% penalty against Claimant's temporary total disability benefits as well as against medical benefits for Claimant's alleged safety violation, per §287.120.5, RSMo;

1. The basis for assessing a safety penalty is that Claimant failed to obey a reasonable rule allegedly adopted by the employer for the safety of employees; I find that this alleged rule was that drivers were to use truck/trailer access platforms, also known as "gantries", when at Thomas Hill Power Plant;

1. Thomas Hill Power Plant had such a rule posted on its premises, and Claimant was aware of the rule;

1. Employer had not adopted such a rule as its own;

1. Employer made no reasonable efforts to cause its employees to obey or follow such a rule;

1. No penalty is assessed against Claimant's benefits;

1. Through October 24, 2015, Employer-Insurer was liable for the payment of 217 weeks of TTD benefits at the weekly rate of 606.13, totaling 131,530.21;

1. Through October 24, 2015, Employer-Insurer has paid the amount of $67,592.84 in TTD benefits;

1. Through October 24, 2015, Employer-Insurer owes Claimant the additional amount of $63,937.37 in TTD benefits;

1. Employer-Insurer is not entitled to any offsets or credits;

1. Employer-Insurer is liable for payment of weekly permanent total disability benefits at the rate of $606.13, beginning October 25, 2015, for Claimant's lifetime;

1. Employer-Insurer is responsible to pay directly to University of Missouri Healthcare the amount of $572.06 pursuant to the APPLICATIONS FOR DIRECT PAYMENT filed herein;

1. The APPLICATIONS FOR PAYMENT OF ADDITIONAL REIMBURSEMENT OF MEDICAL FEES filed by University of Missouri Healthcare should properly be adjudicated as one or more separate actions, and not as a part of this case;

1. The APPLICATIONS FOR PAYMENT OF ADDITIONAL REIMBURSEMENT OF MEDICAL FEES filed by University of Missouri Healthcare are reserved for adjudication at a later time;

1. Claimant has failed to satisfy his burden of proof on the issue of reimbursement for nursing care and/or custodial care allegedly rendered by his wife, Patricia ("Pat") Marquess;

1. Claimant has failed to satisfy his burden of proof on the issue of medical necessity of certain requests, including a ceiling-mounted trapeze-style lift and a portable Jacuzzi/whirlpool tub for the disabled;

1. It is medically necessary for Claimant to utilize a wheelchair;

1. The carpet in Claimant's bedroom and living room makes it difficult for Claimant to utilize his wheelchair; further the wheelchair is tearing up the carpet; and

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**Employee:** Jesse Marquess

**Injury No. 11-068578**

1. It is Employer-Insurer's responsibility to replace the carpet in Claimant's bedroom and living room with an appropriate linoleum surface, in accordance with *Hall v. Fru-Con Construction,* 46 S.W.3d 30 (Mo. App. S.D. 2001).

Employer and Insurer are ordered to pay Claimant the amount of $63,937.37 for underpayment of temporary total disability benefits through October 24, 2015.

Employer and Insurer are ordered to pay Claimant weekly permanent total disability benefits of $606.13 per week, beginning October 25, 2015, for Claimant's lifetime.

Employer and Insurer are also ordered to provide Claimant with future medical benefits to cure and relieve Claimant from the effects of the work-related injury, pursuant to Section 287.140 RSMo.

As a part of Employer-Insurer's duty to provide Claimant with future medical benefits, Employer and Insurer are specifically ordered to replace the carpet in Claimant's bedroom and living room with linoleum floor covering to allow Claimant proper use of his wheelchair.

Employer and Insurer are also ordered to pay directly to University of Missouri Healthcare the amount of $572.06 pursuant to the APPLICATIONS FOR DIRECT PAYMENT.

Claimant's attorney, Jerry Kenter, is allowed 25% of the $63,937.37 in additional temporary total disability benefits, as well as 25% of the future weekly permanent total disability benefits as and for necessary attorney's fees.

I certify that on **16/15/15** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

**Made by:** Robert J. Bierkes

**Chief Administrative Law Judge**

**Division of Workers' Compensation**

**By:** __________________________