By Geri L. Dreiling, Esq.
A Missouri worker who fell from a scaffold was entitled to a 15 percent increase of his work comp award because his employer failed to follow the Scaffolding Act, the Missouri Court of Appeals, Eastern District has ruled.
The 15 percent penalty applied to temporary total disability benefits, medical benefits and permanent partial disability benefits. However, it did not apply to a Second Injury Fund award.
The decision in Hornbeck v. Spectra Painting Inc., et al., written by Missouri Court of Appeals Judge Roy L. Richter, was handed down on Sept. 6.
St. Louis-based lawyer Charles W. Bobinette represented the worker. St. Louis-based lawyer Michael P. McDonald Jr. represented the employer.
In 2006, a painter and drywall taper was assigned to paint a restaurant roof. He attempted to reach the roof by climbing a ladder that had been placed on top of a small scaffold. As he was climbing, the ladder and scaffold collapsed. The painter fell approximately ten feet and was injured on the job.
The administrative law judge awarded temporary total disability benefits, medical payment benefits, permanent partial disability benefits and made an award pursuant to Missouri’s Second Injury Fund. However, the ALJ concluded that the employer did not violate Missouri’s Scaffolding Act and therefore the worker was not entitled to a penalty that would have increased the work comp award by 15 percent.
The worker filed an application for review with Missouri’s Labor and Industrial Relations Commission. While the LIRC affirmed and modified many of ALJ’s findings, it reversed the ALJ on the application of the 15 percent penalty. The LIRC applied the 15 percent penalty to the work comp award.
Missouri Scaffolding Act
Missouri’s work comp law allows for an award to be increased by 15 percent if an injury was caused by an employer’s failure to follow a statute. (Section 287.120.4 RSMo.) The Labor and Industrial Relations Commission concluded that the employer violated Missouri’s Scaffolding act which states that scaffolds “shall be well and safely supported…and so secured as to insure the safety of persons working thereon…against the falling therein.”
The Court agreed that the Missouri Scaffolding Act clearly applied to the work comp claim.
However, the employer argued it was the worker’s burden to produce evidence that the Scaffolding Act had been violated rather than requiring the employer to produce exculpatory evidence to avoid the penalty.
Richter cited a 1919 Missouri Supreme Court decision that applied a nearly identical predecessor to the current Scaffolding Act. In that case, Propulonris v. Goebel Constr. Co., the Court ruled that a fall from scaffold is prima facie evidence of the employer’s negligence and that the statute had been violated. The burden was on the employer to produce exculpatory evidence to avoid the penalty.
Applying Propulonris, the Court concluded in the present case that the Scaffolding Act had been violated and the employer failed to produce exculpatory evidence which would allow it to avoid the 15 percent penalty.
The Penalty and the Missouri Second Injury Fund
The question then before the Court was how to calculate the 15 percent penalty.
The worker argued for the broadest application, applying the penalty to the total amount of the work comp award including medical payments, all previous compensation paid by the employer and the Second Injury Fund award.
The employer urged a narrow construction which would use only the permanent partial disability awarded by the administrative law judge less a $7,000 stipulated indemnity payment already made.
The Court first examined the three types of compensation paid in work comp claim — temporary total disability benefits, medical benefits and permanent partial disability benefits — and addressed the question of whether the 15 percent penalty applied to each.
The temporary total disability payments were meant to compensate the worker as he healed from the injury and were subject to the 15 percent penalty.
The medical benefits paid by the employer are considered compensation and therefore were eligible for the 15 percent increase.
The permanent partial disability benefits were also compensation. Further, the Court rejected the argument that an indemnity credit should shield a portion of the PPD award from the 15 percent penalty. Therefore, the entire award was subject to the 15 percent penalty.
Finally, the Court addressed the question of whether the 15 percent penalty should apply to an award made pursuant to Missouri’s Second Injury Fund. Concluding that adding the penalty would contravene the intent of the Fund and the intent of penalty provision, the Court ruled that it could not be applied to the Second Injury Fund.
The Labor and Industrial Relations Commission’s decision was affirmed in part, reversed in part and remanded.