Chris T. Archer, Esquire
An employer has the burden of proof in asserting a safety penalty including specific evidence on how “the employer... made a reasonable effort to cause [its] employees … to obey the safety rule[s].” Section 287.120.5, RSMo 2005. Carver v. Delta Innovative Services, No. 74266 (Mo. App. W.D., January 29, 2013), Ahuja, J.
The claimant suffered a back injury on October 1, 2007, while carrying a 100-pound roll of composite weather barrier roofing material up a ladder. The claimant testified that he felt immediate pain in his back and leg while carrying the load up the ladder. The Employer argued that the claimant caused his own injury by failing to follow its “three-point” safety rule while climbing a ladder. As a general matter, the three-point rule requires that workers continuously maintain three points of contact with a ladder at all times. Roofers are supposed to use a hand pulley or power equipment, or request the assistance of a coworker, to lift materials to the top of the ladder.
The court reversed the application of the penalty and remanded the case to the commission, finding that there was insufficient evidence and factual findings to support the application of the penalty. “Given that there was substantial evidence in the record which would support a contrary conclusion, the Commission was required to make explicit factual findings concerning the ‘basic facts’ which support its determination that Delta ‘made a reasonable effort to cause [its] employees ... to obey or follow the [three-point] rule. Without such findings, we cannot meaningfully determine whether the Commission’s ultimate conclusion on this issue was supported by substantial and competent evidence. For this reason, we must remand the case to the Commission, for the entry of more specific findings addressing the facts necessary to support a reduction under § 287.120.5.”