final award allowing compensation - missouri · reconstructionist, henry vega, inappropriately...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion) Injury No.: 07-026920 Employee: Dustin Elsworth Employer: Wayne County, Missouri Insurer: Missouri Association of Counties This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the parties’ briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. Discussion Safety penalty under § 287.120.5 RSMo The parties asked the administrative law judge to determine whether employee’s compensation shall be reduced for failure to obey a safety rule of the employer, pursuant to § 287.120.5 RSMo, which provides as follows:

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.

At the outset, we acknowledge employer’s brief, which urges us to find that employee was distracted by Attention Deficit Hyperactivity Disorder (ADHD) and/or his action of sending text messages while driving employer’s dump truck, and that this caused the motor vehicle accident of March 30, 2007, to occur. Notably, though, employer does not claim that it had safety rules regarding employees having a diagnosis of ADHD, or against employees sending text messages while driving; consequently, it would appear that employer’s sole purpose in urging these findings is to advance an argument that employee’s negligence caused the accident. But, as our courts have recently made clear, the statutory penalty under § 287.120.5 is not an invitation to inject issues of negligence into workers’ compensation proceedings. Specifically, in rejecting an employer’s request for a safety penalty where it was alleged a worker’s fatal motor vehicle accident resulted from his (purportedly) negligent or careless driving, the court instructed as follows:

Injury No.: 07-026920 Employee: Dustin Elsworth

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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 § 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.


- 3 - 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. Conclusion 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.


- 4 - 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 8th 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

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ISSUED BY DIVISION OF WORKERS’ COMPENSATION

FINAL AWARD

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

SUMMARY OF FINDINGS 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.


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10. Was the employer insured by above insurer? Yes.

11. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee was injured in a truck accident.

12. Did accident or occupational disease cause death? No.

13. Parts of body injured by accident or occupational disease: Body as a whole.

14. Nature and extent of any permanent disability: The employee is permanently and totally

disabled due to his accident.

15. Compensation paid to date for temporary total disability: $106,809.09.

16. Value necessary medical aid paid to date by the employer-insurer: $2,487,596.58.

17. Value necessary medical aid not furnished by employer-insurer: None.

18. Employee's average weekly wage: Not disclosed at trial.

19. Weekly compensation rate: $236.69 for all purposes.

20. Method wages computation: By agreement.

21. Amount of compensation payable: The employee was permanently and totally disabled as a result of his accident. See Award.

22. Second Injury Fund liability: N/A.

23. Future requirements awarded: The employer-insurer was ordered to provide future

medical benefits.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law. The Compensation awarded to the employee shall be subject to a lien in the amount of 10% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Matthew B. Uhrig. However, at trial Mr. Uhrig indicated that he was only seeking attorney fees for 10% of any lump sum payment. Mr. Uhrig has indicated that he will satisfy any attorney’s lien of John Lake.


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STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW On February 8, 2016, the employee, Dustin S. Elsworth, appeared in person and with his attorney, Matthew B. Uhrig for a hearing for a final award. The Court observed that the employee appeared in a wheelchair. Physically, during trial, the employee sat essentially motionless with his head laid to one side. The only movement that the Court observed was that the employee occasionally moved his fingers on one hand. Mentally the employee gave no indication that he was conscious or had any realization of where he was or what was going on around him. He never spoke or communicated in any manner. The employer-insurer was represented at the hearing by their attorney, Richard L. Montgomery, Jr. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows: UNDISPUTED FACTS: 1. Wayne County, Missouri was operating under and subject to the provisions of the

Missouri Workers’ Compensation Act, and its liability was fully insured by Missouri Association of Counties.

2. On March 30, 2007, Dustin S. Elsworth was an employee of Wayne County, Missouri and was working under the Workers’ Compensation Act.

3. On March 30, 2007, the employee sustained an accident arising out of and in the course of his employment.

4. The employer had notice of the employee’s accident. 5. The employee’s claim was filed within the time allowed by law. 6. The employee’s average weekly wage was not disclosed at trial. His compensation rate

for all purposes is $236.69 per week. 7. The employee’s injury was medically causally related to the accident. 8. The employer-insurer paid $2,487,596.58 in medical aid. 9. The employer-insurer paid $106,809.09 paid in temporary disability benefits.

10. The employee had no claim for previously incurred medical bills. 11. The employee has no claim for mileage.

ISSUES: At trial the parties identified the issue as 1. future medical care, 2. temporary total disability benefits, 3. permanent total disability, 4. permanent partial disability and 5. employee violations under Section 287.120.5 RSMo. However, by letter dated April 8, 2016, the employer-insurer indicated that issues one through four are not in dispute. The employer-insurer further indicated that those issues have been stipulated to or abandoned and need not be decided.


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Therefore, the only issue left to resolve and the only other issue identified at trial are penalty issues against the employee under Section 287.120.5 RSMo. The Court provided rulings on this issue infra. The Court further notes that in his proposed findings the employee argued penalty issues against the employer under Section 287.120.4 RSMo. The Court finds that no such issue was raised at trial. The Court reviewed the file and found that the employee’s attorney did not make this a matter at issue on the day of trial. As the issue was not raised at the time of trial, the Court finds that this issue was not brought to the attention of the Court on February 8, 2016. As this matter was not placed in issue, it cannot and will not be addressed. EXHIBITS: The following exhibits were offered and admitted into evidence:

Employee Exhibits: 1. DVD containing medical records. 2. CV of Aaron B. Koonce, D.O. 3. Letter of Aaron B. Koonce, D.O. 4. Letter of Mark C. Kasten, M.D. 5. Letter of Darryl Kaelin, M.D. 6. Claim for Compensation 07-026920. 7. Deposition of William E. Hampton. 8. C.V. of William E. Hampton. 9. Missouri Uniform Accident Report. 10. Deposition of James W. Hovis. 11. Deposition of Dave Richman. 12. Deposition of Alan Lutes. 13. Notice of Deposition. 14. Copy of a photograph of a truck. 15. Copy of a photograph of a truck. 16. Employee file of Dustin S. Elsworth. 17. Copy of Dustin S. Elsworth’s driver’s license. 18. Job description of Dustin S. Elsworth. 19. Wayne County Employee Safety Manual. 20. Wayne County Personnel Policies Handbook. 21. Insurance Policies. 22. Wayne County Personnel Guidelines. 23. Copy of a photograph. 24. Copy of a photograph. 25. Copy of a photograph. 26. Vehicle Information. 27. Photographs of truck and roadway.


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Employer-Insurer Exhibits: A. Deposition of Henry V. Vega. B. Deposition of Lisa P. Gwin, D.O. C. Video of the deposition of Lisa P. Gwin, D.O. STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW: STATEMENT OF THE FINDINGS OF FACT: Missouri State Highway Report-Richard L. Ayers A Missouri State Highway Patrol Uniform Accident Report was prepared by Trooper Richard L. Ayers. It indicates that Dustin S. Elsworth was involved in a motor vehicle accident on March 30, 2007 in Wayne County, Missouri at 0845 on Route D. He was eighteen years old at that time. The speed limit at the crash site was reported to be 35 miles per hour within a construction zone. The employee was driving a 1994 white Ford dump truck. The report further indicated that: -the box marked Safety Devices indicated “Not Used”. -the dump truck had two axles and weighed more than 26,000 pounds. -in the Sequence of Events section the report indicated that the truck ran off the road to the right, was skidding/sliding, returned to the roadway, overturn/rollover, cargo was lost, the truck ran off the road to the left, collision inv. fixed object. -the Probable Contributing Circumstances section listed too fast for circumstances and improper lane usage. --the Traffic Control section indicated a construction and a no passing zone. -the Road Character section indicated a curve and a grade. According to the evidence at the scene and witness reports, Officer Ayers reported that the truck ran off the right side of the roadway and began to skid. The truck returned to the roadway and overturned. The truck then ran off the left side of the roadway and struck two signs. The truck traveled down an embankment and came to rest right side up. Witnesses reported that “He served to avoid a collision due being across the center line in the curve. He ran off the road, overcorrected, and lost control. He started overturning down the embankment”. The Crash Report Details part of the report indicated No as to safety device in both the Vehicle and Injury section of the report. It was reported that driver sustained serious injuries and was transported from the scene by Air Evac.


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Road and Bridge Department Employee Safety Manual and Wayne County Personnel Policies Handbook The Court finds that these two documents were not in effect on March 30, 2007 as they were adopted by Wayne County on December 23, 2008. They have no relevance to the issues in question other than to document that Wayne County had not adopted such written policies prior to December 23, 2008. Aaron B. Koonce, D.O. Dr. Koonce reported that Mr. Elsworth suffered a traumatic injury from a head-on collision and was rendered severely disabled that he perceived as a “persistent vegetative state”. Dr. Koonce reported that the employee is unable to talk, is fed through a feeding tube and requires 100% and total care from his wife. He further indicated that the employee easily meets the requirements for permanent total disability and that he has no expectation of returning to any normal employment. He further indicated that the employee has a seizure disorder relative to his severe brain injury. Mark C. Kasten, M.D. Dr. Kasten cared for Mr. Elsworth for several years. He indicated that during that period he has made no significant improvements. He reported that Mr. Elsworth clearly has permanent total disability. Darryl Kaelin, M.D. Dr. Kaelin has treated Mr. Elsworth since 2007. He indicated that he has severe cognitive functional deficits related to his work-related traumatic brain injury. He suggests that Mr. Elsworth has a shortened life expectancy but might live another 35 years. James W. Hovis Mr. Hovis testified by deposition on May 12, 2011. He is the Eastern District Commissioner for Wayne County. He hired Mr. Elsworth, but only knew him in passing prior to his accident. He was hired for whatever was needed but his main job was to drive a dump truck. He testified that Mr. Elsworth was interviewed on March 2nd and started March 5th. Mr. Hovis indicated that there are eight employees and one supervisor in the road division. “They’re hired to do whatever we put them on within their training.” When Mr. Hovis interviewed Mr. Elsworth, he told him he had helped some farmer and that was the only experience he had driving a truck. Mr. Elsworth told Mr. Hovis that he had never driven a dump truck.


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Mr. Hovis also testified that Mr. Elsworth was placed with someone who had a CDL. That person went with him a few times to make sure he could handle it on the dump truck part-that is the way we do training is to have an experienced guy go with them to see how well they handle it. Mr. Hovis testified that in March 2007 there was no written training policy regarding operating of heavy machinery or heavy trucks. He also indicated that in March 2007 the County did not have a policy that the workers were to have a CDL license if they were going to operate a dump truck. He indicated that they talked amongst ourselves that we would not hire without a CDL. He reported that when Mr. Elsworth came he had the written portion of the CDL and was scheduled to go take the driving part of it. There was no written policy in existence. There is a 90 day probationary period and Mr. Elsworth knew he had to get his CDL before he was hired permanently. Mr. Hovis and Dave Richman/road supervisor were responsible for training Mr. Elsworth. He testified that other experienced drivers and Mr. Richman went with Mr. Elsworth a few trips and that Mr. Richman reported that Mr. Elsworth was doing well-there were not any bad reports. Mr. Hovis indicated that he gave approval for Mr. Elsworth to drive the dump truck by himself, but he would say that ultimately Mr. Richman was the one who determined that Mr. Elsworth could drive the truck by himself. Mr. Hovis testified that when he interviewed Mr. Elsworth he told him what was expected. He called his interview the “riot act” that he gives to all employees. He reported that he told Mr. Elsworth: -he is expected to do what he is told. -don’t lie to me. -if you’re in the vehicles or the equipment, you observe the laws that’s out there. -your hardhats and seat belts is a must. -you’ll get one warning. David Richman Mr. Richman testified by deposition on May 12, 2011. He is the supervisor of the road and bridge department for Wayne County. He has worked for Wayne County for 20 years and was a truck driver prior to becoming supervisor. He said that his job was to supervise his men. He testified that Mr. Elsworth was hired March 5, 2007 and started March 6, 2007-he was hired to drive a dump truck. He also testified that he knew that Mr. Elsworth did not have a CDL license, but he thought he had a permit. He testified that: -there was no written policy about an employee having a CDL. -there was no employee manual in 2007. - when you were hired you were not required to have a CDL.


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-there were no written training manuals. There was nothing in writing; the way we trained was to put an experienced driver with a new employee to train them. Through the training process the goal is for them to get a CDL. -people could operate the truck without a CDL. If they did not have a CDL they were to get one in 90 days in order to keep their job. -they could drive a dump truck on a road with their Class F license and maybe to a job and back, but they never could drive a whole day by themselves. -the day of Mr. Elsworth’s accident he was sent to by me to Wappapello and he was to wait for me at Girl Scout Road and he didn’t. I was going to ride with him. -on the day of the accident, Mr. Elsworth already made one load and had his accident on a second load. -there is no CB radio in the truck. They did not use CB’s at that time but they do now. They communicated with Mr. Elsworth by cell phone, but the area he was in did not have cell phone coverage. -Mr. Elsworth was driving a dump truck from March 8th on. I put other experienced drivers with him-Shannon Smith, John Finch and myself. They said he was doing fine. -he thought Mr. Elsworth was doing a good job; the plan was for him to drive that truck. -that was his training. In that period he hauled numerous loads. There was someone in the truck with hm. -prior to hiring Mr. Elsworth he had driven the truck and knew of no mechanical problems with the truck. -Mr. Elsworth told him he had never driven a dump truck. He was driving the truck by himself from the shop to the job for a couple of weeks prior to the accident. -he made the decision that Mr. Elsworth could drive the truck by himself. This was based on his performance while he was in the truck. -as to safety, he told Mr. Elsworth that he should always obey traffic rules and always wear a seat belt. -Mr. Elsworth wore his seat belt when he was with him. Mr. Richman testified that the told Mr. Elsworth’s wife about the accident and saw her 45 minutes after the accident. He testified that she told him that it couldn’t have happened as he just sent her a text on his cell phone. Alan Lutes Mr. Lutes testified by deposition on May 12, 2011. He indicated that he was elected as Wayne County Clerk in 1998. He testified that: -his job is mainly the keeper of the personnel folders. -he did not know about any training that Mr. Elsworth received. -he does not have any records as to the condition or repair records of the dump truck. -he appeared with several documents, including Mr. Elsworth’s personnel folder and his driver’s license. -he produced the Road and Bridge Department Safety Manual and a personnel manual that had dates of December 23, 2008. He said that he is not sure what existed before that. He could not


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produce any documents that existed in March 2007 when Mr. Elsworth was hired or had his accident. Mr. Lutes testified that there is a policy that drivers of county vehicle wear their seat belts. He also testified that the information he had from the highway patrol was that Mr. Elsworth was not wearing his seat belt. Henry V. Vega Mr. Vega testified by deposition on September 10, 2010. He prepared a report with photographs dated November 30, 2009. Mr. Vega is presently employed by Semke Forensic. Semke Forensic is a forensic engineering firm that investigates mechanical, electrical, and computer failures as well as accident reconstruction. He conducts vehicle accident reconstructions as well as mechanical failure analysis. Mr. Vega obtained a BS in Mechanical Engineering from Northern Illinois University, he is a licensed professional engineer in the States of Illinois and Missouri, and he is certified in the area of accident reconstruction by the Accreditation Commission for Traffic Accident Reconstruction. When he did the report he was working for Donan Engineering. He changed to Semke, as Donan was not going to do accident reconstruction anymore. Mr. Vega has been doing accident reconstructions since 1998 and has done probably over 100 of them. He was asked to investigate Dustin Elsworth’s accident by Gallagher Bassett. His written report indicates: 1. where the accident occurred. 2. that the vehicle was traveling southbound and entered into a clockwise yaw that resulted in the vehicle rolling over before coming to a final rest along the east shoulder. 3. the initial pre yaw speed for the vehicle was calculated to be in the range of 51 mph to 61 mph. 4. the accident occurred in a construction zone with a 35 mph speed limit. 5. when tested the vehicle driver seat belt was functional. His investigation was done on November 3, 2009. The dump truck was at Robinson’s Wrecker Service. In preparation for his report he: 1. reviewed the Missouri State Highway Patrol report. 2. reviewed the collision scene photographs taken by the Missouri State Highway Patrol. 3. conducted a study of the collision site on November 3, 2009 and took laser measurements. 4. conducted a study of the dump truck on November 3, 2009. After reviewing the police report, Mr. Vega concluded that the vehicle was traveling higher than the posted speed limit. His opinion was that the vehicle was going 51 to 61 mph. He testified that this was established by methods approved by his peers. At the scene he took measurements to determine the speed of the vehicle and determined the final rest place of the vehicle from the accident report. He took into account the roadway


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surfaces at the time of the accident. The surface of the road was dry, and that is a relevant factor in the equations he used involving drag coefficients. They indicated that the roadway leading towards the area of the accident has a curve and that the curve would make a vehicle susceptible to loss of control. He indicated that the road was going downhill and that the shoulders of the roadway have a steep drop off/an elevation change. When he calculated the speed of the truck as 51 to 61 mph, some of the things he took into account are: 1. the slope of the roadway. 2. the road surfaces. 3. any rollover events that took place on the truck. His opinion was that the truck was going well over the speed limit, as well as the speed that a heavy vehicle should try to keep under, as the handling of a heavy vehicle is differently than a passenger vehicle. His opinion was that heavy vehicles should travel slower than the posted speed limit. Mr. Vega testified that the “yaw” marks established the location of where the accident started. He indicated that the photographs show tire marks and that the tire marks clearly indicated that that the vehicle was in a yaw, which was a counterclockwise yaw, indicating that the vehicle was about to enter a rollover on the right side. He said that, “A yaw is if a vehicle is heading in the north direction and the vehicle starts to yaw to the counterclockwise, which indicated that the vehicle’s right side is now leading the rollover.” When he examined the cab of the truck he found that: -the truck had structural damage to the left front A pillar. There was no deformation to the left B-pillar. -the A pillar being crushed downward is consistent with a roll over. -the rear of the driver’s seat had 40 inches of clearance from the seat of the driver towards the roof of the passenger compartment on the driver’s side. i.e. the base of the seat to the roof of the cab. The B pillar had 40 inches clearance; the A pillar had 31 inches. -on the A pillar there is 31 inches clearance from the front portion of the driver’s seat to the top of the passenger compartment on the passenger side. -he believes this damage is from the rollover. When he examined the seat belts, he found that both driver and passenger seat belts were in the truck and functional, although they had indications of prior wear. He indicated that the seat belt was a side release seat belt with an “ELRV”-emergency locking retractor vehicle, which he explained is a unit that is supposed to lock if the vehicle experiences a deceleration or a rollover. He says that the police reports do not indicate that a seat belt was being worn. He reviewed the webbing of the driver’s seat belt and found no evidence which would be consistent with a stretching of the webbing which would be consistent with a seat belt being worn. Mr. Vega reached several conclusions based on the information he reviewed: 1. the vehicle was traveling faster than what was recommended by the roadway design as well as faster than he should have been traveling for a vehicle carrying the payload he had.


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2. the vehicle has a higher center of gravity and is more susceptible to a rollover. 3. he does not believe that the seat belt was being worn. He said he did not have any indications that the webbing showed indications that the seat belt had been loaded. 4. the seat belt was present and functional. He testified that his conclusions regarding the speed traveled and the path the truck traveled were reached based on objective scientific and mathematic principles. The same principles used by others in his field. Employee counsel questioned Mr. Vega regarding his testimony and conclusions. -He agreed that the opinion about the seat belt is not based on his equation, but is based on his personal observations. -The photos show that the canopy of the truck was displaced downwards and to the left, and that Mr. Elsworth would have been sitting on the left. -photos show that the front corner of the canopy is completely collapsed. -He did not determine how tall the Mr. Elsworth was at the time of the accident. He did not determine how his body was positioned at the time of the accident or just before the accident. He says he was just asked to determine the speed and whether the seat belt was present and functional. He says that he did not say that due to the surface wear of the D ring that he could tell that the seat belt was not being used on March 30, 2007. He says that “I indicated that the D ring on the driver’s side had indications of prior wear. Now whether or not it was worn on that date cannot be determined”. He says that he did not notice an elongation on the belt which is consistent with an individual wearing a seat belt during an event of a frontal or a loading event. He says that based on these factors alone, he cannot say whether or not the seat belt was being worn on March 30, 2007 by Dustin Elsworth. -He says there is no evidence to believe that the seat belt released on that day. -He did not determine if Mr. Elsworth had been wearing a seat belt how far forward his body would have been thrown. He was not asked to do this. -He was not asked to determine how Mr. Elsworth’s body would have been thrown around or positioned during the actual sequence of the crash. -He did not do any research to determine whether seat belts on this model truck would release on their own during a rollover accident. He was not asked to. -Based on his research, it is a common problem to certain model vehicles that the seat belts would release on their own in a rollover accident, however he did not know if that is a problem that affected the Ford LNT truck. -The equation he used to determine the speed of the vehicle is referred to as “skid to stop equation.” It takes into account the distance traveled, the roadway surface, and when everything is figured in it provides the speed that would be needed for the vehicle to travel the distance it did. It uses the friction of the roadway. -He was referred to the MSHP report regarding the entry about a safety device not being worn. He was asked if that was consistent with his testimony that no seat belt was being worn. - “I looked at the seatbelt, and the seat belt did not indicate that it was worn, and it was also consistent with the police report, which indicates that the driver’s seat belt device was not worn. There is no usage.”


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-Mr. Vega agreed that he had no opinion as to whether or not Mr. Elsworth was wearing a seat belt. William Hampton Mr. Hampton testified by deposition on March 11, 2014. He prepared no report prior to his deposition. He is an accident reconstructionist that was retained by the employee as of October 11, 2011. He indicated that accident reconstruction is where you examine vehicles, evidence from the scene and human factors to determine how a crash occurred. He also indicated that another part of his job is safety for the transportation industry as far as driver training, compliance with government regulations, etc. He also advises about proper training procedures for commercial drivers. He testified that he was an accident reconstructionist for the MSHP and has investigated 1500-1800 accident cases in the patrol and another 1000 privately, including some dump truck wrecks. He was hired to: -determine the safety aspect of Mr. Elsworth not having a CDL. -make an evaluation of the crash itself. -determine if Mr. Elsworth had his seat belt on. -determine the speed of the vehicle prior to the crash. He was provided documents including: -the MSHP report. -numerous photographs. -the deposition of Bill Hovis. -the deposition of David Richman. -the deposition Alan Lutes. -the deposition of Henry Vega. He indicated that he did not think he could do an accurate analysis of the speed of the vehicle as there was just not enough information at the time of the crash that would assist him on making a different analysis. He provided his opinions about what happened in the crash: -Mr. Elsworth was driving a dump truck loaded with gravel. -he was traveling south on Route D. -he traveled down a hill which also was a curve. -he was traveling somewhere near the center of the roadway. -witness information says he approached an oncoming vehicle and steered his vehicle back to the right side of the roadway, and when he did that he traveled off the right side of the roadway. -he steered to the left and overcorrected, placed his dump truck in a yaw, and by doing that he lost control of the dump truck. -when he made the abrupt turn to the left it placed the vehicle at an angle enough that it rode (probably rolled) to its passenger side dumping the load.


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-the vehicle continued on and traveled off the left or east side of the roadway where it overturned again and came to a rest. He testified that a yaw is much different than a skid mark and that there is a distinction in this case that Mr. Vega confused it in his report. He testified that a skid mark leaves evidence on the roadway from the tire and wheel being in a fixed position, such as you would in extreme braking. There is no rotation of the wheel at that point. A yaw mark leaves a mark on the roadway due to extreme forces on the tires; however, the tire and the wheels are still rotating and leave a striation type mark on the roadway. He indicated that Mr. Vega said the mark on the roadway is a yaw mark; however in his calculation of speed he said he did a skid to stop calculation. He says you cannot do a speed to stop with a yaw mark-you can only do that with a skid mark, so he does not know how he did a skid to stop with just a yaw mark. He testified that the end result would be an inaccurate or wrong speed calculation. Mr. Hampton further testified that he is familiar with Route D due to his time as a trooper. He testified that you would have to pay particular attention on that road. It does not have improved shoulders. It is about 20-21 feet wide. It has drop offs and lots of hills and curves. It is an unforgiving road if you make a mistake. Mr. Hampton testified that the Ford truck had a gross weight rate of 34,700 and that a driver operating a vehicle of this weight should have a class B commercial driver’s license. He further indicated that Mr. Elsworth was 18 years old, had his class F license-a normal driver’s license, and was issued a class B permit on February 21, 2007. With this permit he indicated that state law requires a class B permit holder to be sitting on the right. He pointed out that: -Mr. Elsworth had a few weeks experience. -the largest vehicle he drove previously was a pickup-basically he did not have any commercial or large vehicle experience. -he had been driving for about 6 months. -Wayne County did not provide any training to Mr. Elsworth. -Wayne County had no written policies or manuals regarding training. -his opinion was that there was a total absence of training. He indicated that there are safety requirements required to operate a heavy truck that are contained in Section 307.400 RSMo. His opinion was that: -drivers should be properly trained before operating the truck that Mr. Elsworth drove. -a person with a permit cannot operate the vehicle by themselves. -an employer should not allow an employee to operate one of these trucks unless they have a CDL.


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-the quality of Mr. Elsworth’s training and the lay of the road played an important part in the crash. Mr. Hampton reviewed the report of Henry Vega and provided opinions about it: -He says there are different ways to determine speed: measuring skid marks and calculating the coefficient of friction of the roadway; taking measurements of the critical scuff which would be a yaw mark. You determine the radius of the mark and the length and do a calculation and get the exact speed of the vehicle. Additionally, you make momentum calculations and use the information from a rollover. All of these are used to come up with a combined speed calculation. He is critical of Mr. Vega regarding the difference between a skid and a yaw mark. He says each one has its distinctive characteristics and to do the calculations is totally different for each one. His testimony was that Mr. Vega says he did a speed to stop calculation utilizing a yaw mark and that is not permissible. His opinion was that Mr. Vega did not use determinations that were necessary to get a proper reading, such as the load weight of the truck. Mr. Hampton also gave opinions regarding the seat belt. He reported that: -Mr. Vega did not give an opinion as to whether Mr. Elsworth was wearing his seat belt or not. -the evidence was that Mr. Elsworth was not ejected from the truck. -the MSHP report indicated that Mr. Elsworth was not restrained. It said safety device not used but it did not clarify how the officer made the report. -his experience was that in a crash like this he would he expect that someone who was not wearing a seat belt to be ejected. Mr. Hampton responded to questions asked by the attorney for the employer-insurer. Mr. Hampton testified that: -he had not seen any medical records. -he does not know of Mr. Elsworth’s condition. -he went to the scene but he did not look at the truck. -he used to be with the MSHP. -he agreed that the officer working the scene said that a safety device was not used. He agrees that would mean a seat belt or safety belt. -he agrees that the report says the vehicle was traveling in excessive speed. -he agrees that there are times when someone who is not wearing their seat belt is not thrown from the truck. -he agrees that the roof of the truck was crushed. -he agreed that his understanding of the accident was that Mr. Elsworth had gone across the centerline in order to avoid a collision with an oncoming car, he corrected and steered onto the side of the road, overcorrected and rolled. -he agrees that a witness said that Mr. Elsworth crossed the center line, but he saw no indications as to why he may have veered across the center line. -speed limits are to limit speed as far as the safe operation of the vehicle. i.e. to avoid accidents. -he agrees that if someone is excessively speeding the theory is that they could potentially have a more severe accident. -he says we have the seat belt laws to prevent injuries and to retain the driver in the vehicle.


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-Missouri has a law that requires people to wear seat belts. His opinion was that the accident began when Mr. Elsworth steered the truck off the roadway. Over objection by employer-insurer’s counsel, Mr. Hampton testified that if Wayne County had followed the law and not allowed Mr. Elsworth to operate the truck without a CDL, the accident would not have happened because he would not have been operating the vehicle by himself. Lisa P. Gwin, D.O. Dr. Gwin testified by deposition on January 27, 2016. She had previously prepared reports dated September 17, 2015 and November 17, 2015. Dr. Gwin prepared a report dated September 17, 2015. This report was prepared after she had an opportunity to review all of the evidence in the case. She testified that the medical records indicate that Mr. Elsworth has a past history of attention deficit disorder and oppositional defiant disorder. She testified that the radiology reports show: -right frontoparietal scalp hematoma with embedded debris also other injuries on the right side. She examined the photographic evidence, drew conclusions, and indicated that the photos revealed: -blood on the driver’s door. -the seat belt was found in a stowed position with the lath plate near the outboard anchor. -the webbing and hardware do not show signs of loading. -the latch plate buckled, and did not release with tension on the belt. -there was fluid staining on both the inner and outer surfaces of the driver’s door, as well as the outboard side of the driver’s seat. -there were scratches and dirt stains on the headliner indicating side-to-side movement, as well as an apparent contact mark with fluid staining on the header above the right passenger door. She testified that she adopted what the accident reports said regarding the accident. She was aware that Mr. Vega reported that the vehicle was going 51 to 61 mph and his inspection found no evidence consistent with seat belt use. Based on her expertise she gave her opinions regarding Occupant Kinematics during the crash: -as the vehicle rolled onto its right side, Mr. Elsworth would move toward the right side of the truck. -because he was unrestrained, his head and face struck the passenger door header as well as the roadway with the intervening fracturing passenger window. -as the rollover sequence continued, as the vehicle rolled onto its roof then left side, Mr. Elsworth’s upper body moved across the roof and back to the driver’s seat. -as the vehicle came to rest on its wheels, Mr. Elsworth, having sustained a brain injury rendering him unconscious, was slumped to the left, partially outside the driver’s window.


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She indicated that Mr. Elsworth’s severe head and face injuries were the result of striking the passenger door header and ground with the intervening fracturing passenger window. She stated that if he had been properly wearing the available lap and shoulder seat belt assembly, he would have maintained contact with his seat, and likely would not have been able to reach the passenger door with his head and face. Dr. Gwin prepared a supplemental report dated November 17, 2015. This report was prepared as she was asked to provide opinions regarding seat belt use. Her opinions were: -there was no evidence of seat belt use by Mr. Elsworth. -there were no load marks on the seat belt webbing, D-ring or latch plate. -the latch plate buckled and did not release with tension on the belt. -there was no injury on Mr. Elsworth’s body consistent with seat belt use. -there was no localized injury to indicate seat belt loading. -had he been restrained he would not have reached the right side of the vehicle where his severe injuries occurred. -had the seat belt unlatched in the course of the rollover event, Mr. Elsworth would have injuries localized to his left upper extremity due to entanglement with the seat belt webbing. She also discussed injury causation and stated that: -Mr. Elsworth’s severe head and face injuries were the result of striking the passenger door header and ground with the intervening passenger window. -had he been properly wearing the available lap and shoulder seat belt assembly, he would have maintained contact with his seat, and likely would not have been able to reach the passenger door window with his head and face, preventing his injuries and preventing the severe disability resulting from those injuries. -had Mr. Elsworth not lost control of the vehicle, he would not have been injured at all. Dr. Gwin testified by deposition on January 27, 2016. She is currently employed by Biodynamic Research Corporation located in San Antonio, Texas. She testified that she is a biomechanic, which means that she looks at living tissue, and in humans the mechanics is the study of forces and how they act on certain objects. In general she testified that a biomechanic looks at how forces and accelerations act upon people and how injuries are caused. She testified that by education and training she is an engineer and a physician. She testified that she worked for ten years as a full time physician prior to coming to Biodynamic. As a biomechanic she indicated that she evaluates injuries of all types including those from automobile accidents. Some of her previous education and experience include: -experience as a full time emergency room physician. She is board certified in emergency medicine. -a degree in electrical engineering. -a bachelor’s degree in nursing with eight years of practice in an emergency department. -work as an EMT and fire fighter.


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Dr. Gwin is accredited by ACTAR which is the Accreditation Commission for Traffic Accident Reconstruction. She indicated that you have to have a lot of education in accident reconstruction to be so accredited. As an engineer she testified that she worked for Ford Motor Company where she gained experience working on heavy dump trucks such as the one in Mr. Elsworth’s case. She testified that she performed her evaluation in December 2013. She was hired to evaluate what happened to Mr. Elsworth, to determine how he received the injuries that he received, how they occurred and to provide any opinions about the speed of the vehicle, whether Mr. Elsworth was wearing his seat belt and whether the seat belt was latched or unlatched. She testified that her review of the medical records revealed that: -Mr. Elsworth had a past medial history for ADHD/attention deficit disorder and oppositional defiant disorder. -Mr. Elsworth was found unconscious at the accident scene and was taken to a hospital where he was found to have severe brain damage. -he also has other injuries including severe facial injuries with the most important one being Lefort III injury. A Lefort III injury means that that he had fractures through the orbital bones as well as through the maxillary bones on both sides. This is a type of injury where you can pull the whole foreface away from the rest of the skull. -he had an open right sided skull fracture which was basically in the frontal and parietal areas. The fractures went through to the brain and since they were open they allowed open air to communicate with the brain. This is a very serious injury. -he also had other sorted injuries. Dr. Gwin was provided with a significant amount of information to review including photographs, medical records, accident reports, etc. She testified that her examination of photographs showed: -fluid/likely blood staining on the driver’s door to indicate where Mr. Elsworth ultimately wound up. -there was no evidence that Mr. Elsworth was wearing his seat belt at the time of the crash. -there were no signs of loading. She indicated that the belt locks up and keeps us in our place in a crash. When we load we move and stretch the webbing as we move around in the vehicle. There are generally marks on the D-ring where the belt comes through and then goes across our chest. This is generally made out of plastic so when the webbing rubs across it, it gets very hot because it moves so quickly and so there is a lot of heat. The plastic will usually melt and it will flow a little bit and there are characteristic striations or marking on the plastic D-ring as the webbing moves. The same thing exists around the latch plate. Sometimes there are marks left on the webbing. None of these were present in the photos she looked at. -the photographs showed that the latch plate buckled and did not release with tension. This means the buckle was working properly at that time. -the fluid staining on both doors was likely blood. -the blood on the driver’s side is likely where Mr. Elsworth ended up after the crash.


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-the headliner showed scratches and marks that were sort of horizontal from right to left. That would indicate that Mr. Elsworth had moved across the headliner and left those marks. -there was what appeared to be a fluid stain above the right front passenger window where his head and face likely contacted. The window glass was fractured and gone. Mr. Elsworth likely struck his head there because the x-rays showed debris that was consistent with nuggets of glass, and so that is likely where he hit the right side of his head and face. You would not have expected this if Mr. Elsworth had his seat belt on, as the seat belt would have locked and maintained him in his seat. Even if he were to slip the shoulder belt somewhat, the lap belt would still keep him in place and he is just not tall enough to reach that area with his buttocks still in the seat. Dr. Gwin testified that she did not inspect the vehicle herself, but she reviewed Mr. Vega’s report and his deposition testimony. She reported that his accident reconstruction made sense and she found nothing of concern in the investigation. She also reviewed radiological studies along with her colleague, Dr. Cynthia Day. She stated that they are consistent with her testimony. She indicated that they can look for evidence of seat belt marks using CAT scans in 3D images. Also skin surface and muscle tissue can determine if there is any evidence of seat belt usage. You would often find bruising, edema or swelling over the musculature and skin tissue over the clavicle or collar bone or the chest and sternum and the lap or pelvis where the belt was worn. There were no such marks on Mr. Elsworth, indicating there is no evidence that Mr. Elsworth was wearing a seat belt. Dr. Gwin testified that “occupant kinematics” is where you put together the crash reconstruction, examine photographs of the vehicle and the scene, such things as marks on the road; together with the injuries to determine where the occupant was in the vehicle and determine how the occupant moved in the crash. She testified that she was able to use able to use kinematics to determine Mr. Elsworth’s body movement in the crash. She indicated that: -as the vehicle rolled onto its right side, Mr. Elsworth would move toward the right side of the truck. -because he was unrestrained, his head and face struck the passenger header as well as the roadway with the intervening fracturing passenger window. -as the rollover sequence continued , and the vehicle rolled onto its roof then left side, Mr. Elsworth’s body moved across the roof, and back to the driver’s seat. -as the vehicle came to rest on its wheels, Mr. Elsworth, having sustained a brain injury rendering him unconscious, was slumped to the left, partially outside the driver’s window. She further reported that: - Mr. Elsworth’s severe head and face injuries were the result of striking the passenger door header and ground with the intervening fracturing window. -had he been wearing the available lap and shoulder seat belt assembly, he would have maintained contact with his seat, and likely would not have been able to reach the passenger door and window with his head and face. -obviously the crash was the cause, without the crash there would have been no injuries.


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-there was no evidence he was wearing his seat belt. This allowed him to be able to move across the vehicle with a lot of speed and force and strike the header above the right front passenger door as well as the window glass and that caused his head and face injuries. -there was no evidence that the seat belt was not working properly. -Mr. Elsworth’s failure to wear his seat belt caused the severe injuries to his face and neck. Had he been wearing his seat belt he certainly might have some injuries but he would not have been able to strike the right side of the vehicle with his head and face causing the most severe injuries. His injuries were more severe due to not wearing his seat belt. She agreed that if Mr. Elsworth was texting, this could cause inattention to driving. Dr. Gwin was cross examined by the employee’s counsel. She agreed that: -she has not seen pictures of Mr. Elsworth’s injuries. -she is not a seat belt expert. -the seat belt type that Mr. Elsworth had allowed for forehead movement. -she did not inspect the truck herself and did not go to the accident scene. -she does not know the exact position that the seat belt latch plate was on the webbing at the time of the accident. -she does not know if someone moved the latch plate after the wreck. She said earlier that it was at the bottom of the seat belt webbing close to the floor. -Mr. Elsworth is 6’ 2”. Dr. Gwin testified that Mr. Elsworth had a couple inches of headroom above his head to the roof. When asked if the seat belt didn’t lock then Mr. Elsworth’s head would have contacted the front of the crushed cab, she replied that she did not do that analysis. She further agreed that: -scrapes and abrasions can also be consistent with seat belt use. - according to some research, seat belts in some vehicles can release in rollover accidents. She added they do not release on their own. -some of her opinions were based on Mr. Vega’s accident reconstruction. She testified that some of the things she relied on to say Mr. Elsworth was not wearing his seat belt were: -the investigation of Mr. Vega. -the lack of any evidence on the webbing. -the lack of any evidence on the latch plate. -the lack of any evidence on the D-ring. -Mr. Elsworth’s injuries. -the marks in the vehicle including the roof and blood on the passenger side. She reported that she did not get to actually see the seat belt but would like to if it were available. She says it is always better to look at the actual evidence but photographs can be nearly as good. When questioned about the marks above the passenger window she testified that: -rollovers are complex to model.


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-the passenger window was broken by colliding with the ground-not by Mr. Elsworth hitting it. Mr. Elsworth was there at the same time it was fracturing. She also testified that due to the fluid staining she believes Mr. Elsworth was in the driver’s seat probably slumped over when he was found. Dr. Gwin testified that she does not know about CDL training but agreed that driver error is probably a factor in most crashes. She said she had no opinion about whether Mr. Elsworth was properly trained or not. She further explained that she relied some on Mr. Vega’s report but more on the things she looked at. She says she provided a medical opinion, not an accident reconstruction opinion. Ms. Elsworth Amie Elsworth is the wife of Mr. Elsworth. They were married approximately six weeks prior to Mr. Elsworth’s accident. She is his sole dependent. She has been providing care for her husband since the accident. She testified that when she learned of accident she went to St. Francis Hospital. Her husband was taken there by helicopter. She indicated that her husband has a brain injury and had multiple surgeries and was in multiple hospitals and nursing centers prior to returning to their home. She testified that her husband cannot talk or communicate. She does not think he comprehends anything. He is immobile and cannot move himself. She has to do everything for her husband as he cannot do anything to care for himself and requires 24 hour care. She feeds her husband with a feeding tube. Several feeding tubes have been put in since he left the hospital. She testified that in the future her husband will need total care. If she could not care for her husband he would be in a nursing home. She apparently has some family help, but in addition the employer-insurer pays her about $1,700.00 per month to take care of her husband. She testified that her husband does not have a CDL. Before his employment he never drove anything bigger than a pickup. She indicated that his habit was to wear seat belts and made passengers do so. He told passengers that the car would not start until the seat belts were on. When she was informed of her husband’s accident she thought it could not be true as she had just gotten a text from him. The Court observed the employee during the course of the trial. He appeared in a wheelchair and sat motionless throughout the trial except for some slight finger movement on one hand. He appeared to be unconscious and gave no indication that he had any concept of where he was or what was going on around him.


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RULINGS OF LAW: Future Medical Care At trial future medical care was identified as an issue. However, in a letter dated April 8, 2016, the employer-insurer reported that future medical care was no longer an issue and indicated that they are abandoning this issue. Section 287.140.1 RsMo., states that “In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment, including nursing, custodial, ambulances and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.” The employer-insurer is to be commended as they have paid over $2.4 million in medical bills and while they are questioning a penalty provision under Section 287.120.5 RSMo., they have indicated that if they are successful they are not asking that any penalty provision be applied to any past or future medical bills. Based on a consideration of all of the evidence in the case including the reports of the physicians and medical providers who treated the employee, and specifically due to the letter from the employer-insurer dated April 8, 2016, the Court finds that the employee is in need of future medical care. The employer-insurer is directed to provide all medical care that is needed to cure and relieve the employee from the effects of his March 30, 2007 accident. This medical care shall include such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines that are required due to the effects of the employee’s injury. Permanent Total Disability, Permanent Partial Disability and Temporary Total Disability At trial, temporary total disability, permanent partial disability and permanent total disability were identified as issues. However, in a letter dated April 8, 2016, the employer-insurer reported that these matters were no longer issues and indicated that they are abandoning these issues. The employer-insurer is to be commended as they paid all such benefits from March 30, 2007 through the trial date. While they are they are questioning a penalty provision under Section 287.120.5 RSMo., they have indicated that if they are successful they are only asking that any penalty provisions be applied to any disability compensation that is due and owing after February 8, 2016. Based on a consideration of all of the evidence in the case, including the medical evidence, the personal observations of the Court as to the physical and mental condition of the employee, and the fact that the employer-insurer withdrew the issue of permanency after trial, the Court finds that the employee is permanently and totally disabled as a result of his accident of March 30,


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2007. He suffered a traumatic brain injury in addition to other physical injuries due to his accident and has not improved. Due to his condition no employer would hire him to perform any job. The employee’s rate for permanent partial, permanent total and temporary total disability is $236.69 per week. The employer-insurer had paid $106,809.09 in temporary total disability benefits as of February 8, 2016. The employer-insurer is ordered to pay the employee $236.69 per week as permanent total disability compensation effective March 31, 2007, the day after the employee’s accident. The employer-insurer is given credit for all disability benefits paid prior to the trial date of February 8, 2016 and thereafter. The employer-insurer shall continue to pay the employee permanent total disability benefits at a rate of $236.69 per week beginning as of the date of this award. There is no issue for permanent partial disability compensation. Issue-Safety violation under the provisions of Section 287.120.5 RSMo. The employer-insurer have asserted a safety violation by the employee pursuant to Section 287.120.5 RSMo; in that the employee failed to obey or follow safety rules of the employer in that he failed to wear a seat belt, he was speeding, he was texting and he was inattentive due to his Attention Deficit Hyperactivity Disorder. 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”.

Section 287.120.5 requires that the employer-insurer establish that the violation of a safety rule caused the employee’s injury. Under this section there must be a causal connection between the violation of the employer’s safety rule and the employee’s injury. The protection to the employer-insurer provided by this section is an affirmative defense and therefore, the burden is on the employer-insurer. In asserting an affirmative defense the party asserting such defense must establish that the proposition is more likely to be true than not true. See Thompson v. ICI American Holding, 347 S.W. 3d 624 (Mo. App 2011) and Carver v. Delta Innovative Services, 379 S.W. 3d 865 (Mo. App. 2012).


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Paragraph 5 of Section 287.120 set out the requirements that must be met before a safety penalty can be imposed. First the injury has to be caused by the failure of the employee to use safety devices where provided by the employer, or (emphasis added) second, from the employee’s failure to obey any reasonable rule adopted by the employer for the safety of employees; provided that (emphasis added) third, it is shown that the employee had actual knowledge of the rule so adopted by the employer, and fourth that the employer had, prior to the injury, made a reasonable effort to cause the employees to use the safety device or devices and obey or follow the rule so adopted for the safety of the employees. The first two requirements are in the alternative. The employee can be subjected to a safety violation if the failure to use safety devices caused the injury, or if the failure to obey a reasonable rule adopted for safety caused the injury. If the employee has violated either rule, then the employee can be subjected to a safety violation penalty if the requirements of the third and fourth conditions are met. If in fact all conditions are met, the statute requires the Court to impose a safety violation. The Court has no discretion but to impose a safety penalty violation as the language of the statute reads “… shall be reduced …” The Court does have discretion to determine the level of penalty imposed, as the statute states that the compensation and death benefits provided shall be reduced “at least twenty-five but not more than fifty percent.” The Court must set a safety violation penalty at a minimum of twenty-five percent, a maximum of fifty percent, or anywhere in-between. However, the statute is silent as to any guidance as to what penalty should be imposed in a given situation, or in setting out standards that the Court should utilize in determining the appropriate penalty. The next two requirements deal with the knowledge the employee had of the rule adopted by the employer and the efforts of the employer to cause employees to use safety devices or obey or follow rules adopted for the safety of employees. Texting and Inattention due to Attention Deficit Hyperactivity Disorder The evidence on these topics is speculative at best. The only evidence on texting comes from the employee’s wife. There is no indication at what time the employee was texting and driving or whether such activity was being performed immediately prior to the accident. There is no evidence that proves that the employee’s texting in any way contributed to or caused his injury. There also is no evidence that shows that the employee’s supposed Attention Deficit Hyperactivity Disorder was active at the time of the accident or in any way contributed to the employee’s injury in any form or manner. The evidence mentions that the employee may suffer from this disorder, but there is no credible evidence connecting it to the accident or indicating that it caused the employee’s injury. The Court finds that the employer-insurer has failed to provide any credible evidence that texting or Attention Deficit Hyperactivity Disorder contributed in any form or manner to or caused the employee’s injury. As the employer-insurer has not offered credible evidence to meet its burden of proof on this affirmative defense, the Court cannot and does not impose any penalty provision for texting or Attention Hyperactivity Disorder.


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Safety Belt and Speeding Evidence about whether or not the employee was utilizing his seat belt immediately prior to his accident or was speeding comes from multiple sources: -MSHP. Trooper Ayers indicated in his accident report that safety devices were “Not Used.” Trooper Ayers also indicated that the employee was traveling too fast for circumstances. -Mr. Vega. While Mr. Vega did not testify that the employee was not wearing his safety belt immediately prior to his accident and injuries, his testimony was that there was not any evidence supporting the employee’s use of his safety belt immediately prior to his accident and resulting injuries. He also testified that he calculated the speed of the dump truck to be 51 to 61 mph immediately prior to the accident. -Mr. Hampton. Mr. Hampton criticized Mr. Vega’s determination of the speed of the dump truck and testified that there was not sufficient information to sufficiently determine the speed of the dump truck immediately before the accident. He did not provide a specific opinion about the employee’s seat belt usage but did indicate that his experience was that in accidents such as this one, people who are not wearing their seat belts are ejected from the vehicle. -Dr. Gwin. Dr. Gwin specifically testified that the evidence that she reviewed supports the position that the employee was not wearing his seat belt immediately prior to his accident and resulting injuries. She adopted Mr. Vega’s reconstruction report regarding speeding. In order for the Court to impose any safety penalties, the employer-insurer has to meet its burden of proof on each and every requirement of Section 287.120.5. Even if the employee was not wearing his seat belt and even if he was speeding, the Court finds that prior to March 30, 2007 Wayne County had not made a reasonable effort to cause its employees to use safety devices and to obey any rules adopted for the safety of employees. The evidence as to this aspect of Section 287.120.5 is quite clear: -the employee was 18 years old and had only had his Class F drivers license for approximately six months prior to the time he was hired by Wayne County. -Wayne County hired the employee to drive a dump truck knowing that he had never driven anything larger than a pickup. -Wayne County hired the employee and let him drive the dump truck by himself when he only had a CDL learners permit that was acquired on February 21, 2007. -Wayne County had no written safety rules or procedures prior to March 30, 2007. Any such manual or policies were created and or adopted after March 30, 2007. -other than riding with several people who may or may not have had CDLs for an indeterminate number of times or days, there is no evidence as to any training about safety rules or procedures that were provided to the employee. -there is no evidence that the employee was instructed as to the particular handling characteristics of a dump truck under load and on rural roads. -other than riding with other drivers, there is no evidence as to what if any training the employee received from those drivers about any safety rules or any other topic. -the only effort that Wayne County provided to the employee regarding safety rules came from several sources:


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- Mr. Hovis when he testified that he told the employee that he is expected to observe the laws out there and that hardhats and seat belt is a must. -Mr. Richman when he testified that he told the employee that as to safety he should always obey traffic rules and always wear a seat belt. He also testified that the employee rode with himself, Shannon Smith and John Finch. -there is no other evidence as to what safety rules or instruction the employee received from Mr. Hovis, Mr. Smith or Mr. Finch. In short, the only safety rules or policy or training that the employee was made aware of was some amount of “On the Job” training by a few people without any specificity as to what training was provided or received. The employ-insurer failed to prove essential elements of Section 287.120.5, even if it was determined that the employee was not wearing his seat belt and was speeding. The employer had not adopted a policy specifically requiring that the employee wear seat belts or to drive a vehicle within the posted speed limits or within a speed limit required due to the conditions of the road or considering the unusual handling characteristics of a dump truck under load. It is also questionable as to whether Wayne County made any reasonable effort to enforce safety rules or policies especially when you consider that the employee was allowed to drive the dump truck by himself. The employer did not adopt a policy specifically requiring employees to wear their seat belts or drive within posted limits while operating a motor vehicle. The Court specifically finds that the employer-insurer’s evidence as to whatever safety discussions, talks or information provided while receiving OJT was not a policy and did not meet the requirements of Section 287.120.5. Rather, the employers simply communicated that employees were to obey all laws. Words in statutes must have meaning and the statute requires the employer to adopt a policy. Merely informing employees to “obey all laws” is not a policy, and is no more of an adopted policy than an employer simply telling its employees “not to be negligent.” Such general instruction is not a policy and provides no meaningful guidance to employees above what all members of society are expected to do-“Obey Our Laws.” While this general statement of conduct may have some safety benefit, it is too vague to conclude that it is a policy that employers adopted for the statutory specified purpose: “Safety of Employees.” The Court finds that the employer-insurer has not met its burden of proof under Section 287.120.5. No penalty provisions are imposed against the employee. As stated earlier, no penalty provisions are imposed against the employer-insurer as that was not made an issue at trial. ATTORNEY’S FEE: Normally, Matthew B. Uhrig, attorney at law, would be allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. However he has indicated that his fee will be 10% of any lump sum payment that is made; however, the maximum fee he should be allowed is the 25%. The amount of this attorney’s fee


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shall constitute a lien on the compensation awarded herein. Mr. Uhrig has indicated that he will satisfy any attorney’s lien of John Lake. INTEREST: Interest on all sums awarded hereunder shall be paid as provided by law. Made by: _______________________________________ Gary L. Robbins Administrative Law Judge Division of Workers' Compensation

final award allowing compensation - missouri · reconstructionist, henry vega, inappropriately...

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