(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
-2-
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:
- 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
-3-
50% reduction in all benefits, including but not limited to TTD, PTD, and all medical benefits.
- 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.
- 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
-4-
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
-5-