Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elsworth v. Wayne County

Court of Appeals of Missouri, Southern District, First Division

April 24, 2018

AMIE ELSWORTH, Claimant-Respondent,
v.
WAYNE COUNTY, MISSOURI, Employer-Appellant.

          APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION AFFIRMED.

          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 work 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.