Elsworth v. Wayne Cnty.

547 S.W.3d 599
CourtMissouri Court of Appeals
DecidedApril 24, 2018
DocketNo. SD 34919
StatusPublished
Cited by5 cases

This text of 547 S.W.3d 599 (Elsworth v. Wayne Cnty.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elsworth v. Wayne Cnty., 547 S.W.3d 599 (Mo. Ct. App. 2018).

Opinion

MARY W. SHEFFIELD, P.J.

Wayne County, Missouri ("Employer"), appeals the award of permanent and total disability benefits issued by the Labor and Industrial Relations Commission ("the Commission") in favor of Dustin Elsworth ("Elsworth"). In five points on appeal, Employer challenges the Commission's finding that Employer failed to prove its entitlement to a penalty against Elsworth for his violation of Employer's safety rules. See § 287.120.5.1 Because it is dispositive in this appeal, we address and deny only point 3, and need not address the remainder of Employer's points. The Commission's award to Elsworth is affirmed.

Background

On the job less than a month, 18-year-old Elsworth overturned a dump truck while rounding a corner on Route D in Wayne County in March 2007. The truck rolled twice, fracturing Elsworth's skull and placing him in a "persistent vegetative state" for the remainder of his life.2 After post-hearing stipulations, the only question the parties asked of the administrative law judge ("ALJ") was whether Employer was entitled to a penalty under § 287.120.5 for alleged violations of safety rules adopted by Employer.

The only evidence of safety rules in effect at the time of Elsworth's injury came from the testimony of two people, James Hovis ("Hovis") and David Richman ("Richman"). Hovis was the Eastern District Commissioner for Wayne County. He interviewed and hired Elsworth "mostly to drive a dump truck." During Elsworth's initial interview on March 2, 2007, Hovis told Elsworth:

If you're on-if you're in the vehicles or the equipment, you observe the laws that's out there. Your hardhats and your seat belts is a must, and I don't think you want to hear the story I told them. But when they say what happens, I said you'll get one warning. This is what happens after that. I said you don't want to know. I won't go into the length about the story I told them there, but he was told here, I says, now, can you-can you *601work under them conditions, and he said, yes, I can. He was eager to get going, so I decided to hire him.

Richman was Elsworth's direct supervisor. He testified as follows:

Q. Did you have any conversations about safety with an employee before he went to work?
...
A. I advised [Elsworth] that he should always wear a seat belt, you know, while driving a dump truck, obey all traffic laws, regulations.

Employer argued that Elsworth had violated these rules by speeding and failing to wear his seatbelt at the time of the crash. After an exhaustive review of the evidence, the ALJ found Employer had not met its burden of proof. The Commission adopted the ALJ's findings and supplemented with additional findings. Together, those findings were that: (1) Employer had not adopted reasonable rules for the safety of its employees; (2) Employer had not made a reasonable effort to cause its employees to obey its safety rules; and (3) Employer had not proven that Elsworth was not wearing his seatbelt and was speeding at the time of the accident. Employer challenges each of those findings in five points on appeal. Relevant additional evidence will be discussed below.

Standard of Review

We review the final decision and findings of the Commission and, to the extent adopted or incorporated by the Commission in its decision, the findings and conclusions of the ALJ. Sell v. Ozarks Medical Center , 333 S.W.3d 498, 505 (Mo. App. S.D. 2011). This Court must defer to the Commission's findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence. Treasurer of State-Custodian of Second Injury Fund v. Witte , 414 S.W.3d 455, 460 (Mo. banc 2013). In a challenge under § 287.495.1(4), this Court may modify, reverse, remand for rehearing, or set aside the award only upon a finding that "there was not sufficient competent evidence in the record to warrant the making of the award." § 287.495.1(4). "[W]e examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, that is, whether the award is contrary to the overwhelming weight of the evidence." Lawrence v. Anheuser Busch Cos. Inc. , 310 S.W.3d 248, 250 (Mo. App. E.D. 2010) ; see Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 222-23 (Mo. banc 2003).

Analysis

The Commission found that, prior to the date of Elsworth's accident, Employer "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." Employer's third point claims that the Commission erred in finding that "Employer failed to meet its burden of proving it made a reasonable effort to cause employee's [sic] to obey its safety rules or use safety devices provided because such finding is not supported by competent substantial evidence and is against the overwhelming weight of the evidence[.]" We disagree.

Missouri's Workers' Compensation Law 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 at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the *602rule 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.

An award reduction under § 287.120.5 is an affirmative defense upon which Employer had the burden of proving that each element was "more likely to be true than not true." § 287.808; Carver v. Delta Innovative Servs. , 379 S.W.3d 865, 869 (Mo. App. W.D. 2012).3

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Bluebook (online)
547 S.W.3d 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elsworth-v-wayne-cnty-moctapp-2018.