Escambia County Board of County Commissioners v. Reeder

648 So. 2d 222, 1994 Fla. App. LEXIS 12800, 1994 WL 722118
CourtDistrict Court of Appeal of Florida
DecidedDecember 23, 1994
DocketNo. 94-618
StatusPublished

This text of 648 So. 2d 222 (Escambia County Board of County Commissioners v. Reeder) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Escambia County Board of County Commissioners v. Reeder, 648 So. 2d 222, 1994 Fla. App. LEXIS 12800, 1994 WL 722118 (Fla. Ct. App. 1994).

Opinion

MICKLE, Judge.

The Employer/Self-insured, Escambia County Board of County Commissioners (Employer), appeals an order of the judge of compensation claims (JCC) awarding William J. Reeder (Claimant) full compensation benefits. Claimant cross-appeals the denial of statutory penalties. Finding that Claimant was entitled to an assessment of penalties against Employer, we reverse that portion of the order holding otherwise. In all other respects, we affirm the order. § 440.09(4), Fla.Stat. (1991).

Claimant, a heavy equipment operator, was injured on December 29,1992, when the D-9 Caterpillar bulldozer he was operating slipped over the edge of a tall garbage mound at the county landfill and rolled over side-to-side several times. Claimant was thrown clear of the bulldozer before it came to rest at the base of the mountain of refuse. He sustained injuries mainly to his ribs, right shoulder, and right arm. Although clearly advised that safety devices must be worn during operation of Employer’s equipment, Claimant was not wearing a seat belt at the time of the accident. The bulldozer was equipped with a functioning safety belt, like a lap belt on an airplane, which was bolted down and adjustable but non-retractable. It was not equipped with a shoulder harness.

Claimant sought payment of indemnity benefits at the full compensation rate, and Employer stipulated to the compensability of the accident. However, Employer’s claims adjuster determined that under the circumstances of the accident, Claimant’s compensation should be reduced by 25 percent pursuant to section 440.09(4), Florida Statutes (1991), because Employer clearly had promulgated a safety rule requiring employees to wear safety belts, the rule had been brought to Claimant’s attention, and Claimant admitted not wearing a seat belt at the time of injury. The statute reads:

Where injury is caused by the knowing refusal of the

employee to use a safety appliance or observe a safety rule required by statute or lawfully promulgated by the division, and brought prior to the accident to his or her knowledge, or where injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

Employer contended that Claimant’s injury was caused by his knowing refusal or failure to wear a seat belt. On the other hand, Claimant asserted that in addition to proof that the injured employee knowingly refused to wear a safety device, an employer must prove that a causal relationship exists between the injuries sustained in the accident and the failure to comply with a seat [224]*224belt requirement. Claimant sought reimbursement of the 25 percent reduction in his compensation, in addition to statutory penalties, interest, costs, and attorney’s fees.

In interpreting the statute, we find support for Claimant’s position in McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177 (Fla. 1st DCA 1982), in which truck driver/employee McCauley was loading caustic soda into a tank truck when he was injured in an accident arising out of and in the course of employment. Soda flew into his eyes and caused vision problems. The employer paid temporary disability benefits but affirmatively defended, arguing that McCauley had received instructions to wear safety goggles, as required by a United States Occupational Safety & Health Administration mandate. Specifically, the employer relied on the 1979 version of section 440.09(4), which addressed “injury ... caused by the willful refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully promulgated by the division, and brought prior to the accident to his ... knowledge,” and which provided for a 25 percent reduction in compensation. A post-accident inspection of McCauley’s vehicle revealed a pair of goggles behind the driver’s seat. The deputy commissioner concluded that section 440.09(4) was inapplicable to McCauley’s case as a matter of law. For reasons not pertinent to the case sub judiee, we reversed the order in McKenzie and remanded for additional factual findings. Id. at 1180-82.

In McKenzie, we noted that section 440.09(4) may afford an employer/carrier a “partial affirmative defense to a claim for benefits.” Id. at 1180, citing, 1A Larson, Workmen’s Compensation, § 33.10 at 6-48 (1979). McKenzie is instructive for our analysis of section 440.09(4) in that we found that “it is apparent that the statute can only be defensively invoked when there is a causal relationship between a violation of the statute and the injury.” Id. at 1180. Since our issuance of McKenzie in 1982, the statute has been amended so that now it addresses, first, an injury caused by the employee’s “knowing refusal” rather than “willful refusal” to use a safety appliance. Second, the applicable version embraces a second scenario, possibly applicable here, “where injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer.” We conclude from the plain language of section 440.09(4) and from McKenzie that, irrespective of the ensuing statutory changes, resolution of the matter in the lower tribunal required a determination as to whether “a causal relationship” exists between Claimant’s injury and bis knowing refusal to wear an available safety device provided by Employer.

The established rule in workers’ compensation is that a causal relationship between an employee’s injury and the industrial accident must be shown by competent substantial evidence. § 440.02(1) & (17), Fla. Stat. (1991) (defining “accident” and “injury,” respectively); Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991); Stephens Trucking Co. v. Bibbs, 569 So.2d 490 (Fla. 1st DCA 1990). Claimant met his burden on that issue, and the accident was found to be compensable. Given the fact that Claimant had knowingly refused to wear a safety belt at the time of the accident, Employer, by raising the statutory partial affirmative defense, had the burden to prove the existence of a causal relationship between the injuries sustained in the bulldozer accident and Claimant’s failure to wear a safety device. It was the JCC’s duty to resolve this issue. McKenzie, 418 So.2d at 1180.

Claimant testified that even if he had worn the lap belt as the bulldozer rolled down from atop the garbage mound, he still could have struck the arm rests in the cab with his arms, shoulders, and ribs, and his side or chest could have hit the pointed knobs of the track control lever as well as the transmission and tilt-blade knobs. Because he was not secured in the cab by a seat belt, he was ejected and landed a number of feet outside the vehicle.

The emergency room physician (Dr. Benson) testified that she could not tell if Claimant’s failure to use a seat belt had any bearing on his injuries. The orthopedic surgeon who treated Claimant (Dr. Saiter) testified that he could not tell whether the failure to use a safety belt contributed to the injuries. [225]*225According to Dr. Saiter, in most instances it is advantageous to wear a seat belt, yet he could not say this in Claimant’s ease. In fact, Dr. Saiter stated that it might have been fortunate that Claimant was thrown clear of the tumbling bulldozer.

Over Claimant’s objection, Employer presented the testimony of Mr.

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Bluebook (online)
648 So. 2d 222, 1994 Fla. App. LEXIS 12800, 1994 WL 722118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/escambia-county-board-of-county-commissioners-v-reeder-fladistctapp-1994.