Missouri: Court Tightens Burden of Missouri Employer to Invoke Safety Penalty

Claimant carried a 100-pound roll of composite on to a roof, he hurt his back and became totally disabled. The Western District court of appeals reversed the 50% safety penalty on his benefits applied by the administrative law judge and the Commission and remanded the case for further findings. Carver v Delta Innovative Services, 2012 Mo. App. Lexis 1123 (Sept. 11, 2012).

Missouri provides a 25-50% penalty in §287.120 for the failure to use safety devices or the failure to obey a reasonable rule adopted by the employer for the safety of the employees. The administrative law judge found claimant knew he was going to violate a three-point safety rule, and he made a conscious decision to violate the rule and invoked the maximum penalty. The court remanded the case for the commission to make express findings whether the employer made a reasonable effort to cause his employees the follow the rule.

The court noted that although causation was “not raised by the parties, ” it felt the Commission should make further findings on the existing record whether violation of the safety rule caused the injury. The court concluded that a safety penalty did not automatically apply when a claimant sustained injury while violating a safety rule, because the affirmative defense only applied with additional express findings that violating the rule caused the injury. “It is not clear that this is the sort of injury that the three-point rule was adopted to prevent, and whether Carver's violation of the three-point rule bore a sufficient causal connection to his injury.”

The same judge affirmed a safety penalty a year earlier in Thompson v ICI Am Holding, 347 S.W.3d 624 (Mo. App. 2011) which invoked a 37 ½% penalty on all benefits because claimant failed to de-energize equipment, and noted the safety penalty applied if violation was a “one of the efficient causes thereof” even if other concurrent causes existed. In Thompson the claimant asserted the injury arose because a replacement belt was installed at full tension rather than flowing from the failure to lock-out all energy sources.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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