Jost v. Big Boys Steel Erection, Inc., 70583

• Decision Date: 10 June 1997
• Docket Number: No. 70583,70583
• Citation: 946 S.W.2d 777
• Court: Missouri Court of Appeals
• Parties: Mark JOST, Respondent, v. BIG BOYS STEEL ERECTION, INC., and Aetna Casualty & Surety Co., Defendants/Appellants.

Page 777

946 S.W.2d 777

Mark JOST, Respondent, v. BIG BOYS STEEL ERECTION, INC., and Aetna Casualty & Surety

Co., Defendants/Appellants.

No. 70583.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 10, 1997.

Lynn E. Newmark, St. Louis, for defendants/appellants.

W. Morris Taylor, Clayton, for respondent.

RHODES RUSSELL, Presiding Judge.

Big Boys Steel Erection, Inc. ("employer") and Aetna Casualty & Surety Co. appeal from the Labor and Industrial Relations Commission's ("Commission") decision awarding Mark Jost ("claimant") compensation for an injury occurring during the course of his employment. We reverse the Commission's assessment of a penalty for employer's alleged violation of safety statutes in that the statutes are inapplicable to the facts of this case. We affirm the claimant's permanent partial disability award as there was substantial and competent evidence to support the award.

On or about August 23, 1991, claimant was working for employer as a steelworker at a job site on Manchester Road in St. Louis County. Claimant erected support columns for the framework of a building, installed bar joists, and loaded the roof decking. While wielding a bar joist down, the portion of the roof decking where claimant was standing, collapsed, resulting in his fall of sixteen feet to a concrete floor.

Claimant was taken to St. John's Hospital following the accident. He was treated for a compression fracture of his L-1 vertebrae, a fracture of the second and third metatarsal, a closed head injury with a cerebral contusion, a laceration to his head, and a knee injury.

The Division of Workers' Compensation held a hearing on September 8, 1995. The claimant testified as to his injuries and various medical reports were introduced into evidence. The Administrative Law Judge ("ALJ") entered an award assessing permanent partial disability for 280.5 weeks. The ALJ found the following disabilities: 20 percent of the body as a whole for the L-1 vertebrae compression; 20 percent of the body as a whole for the closed head injury and associated memory loss; 20 percent of the right knee for muscle atrophy; 15 percent of the right hand; 10 percent of the hand for the second and third metatarsal fractures. The ALJ also awarded 20 weeks of disfigurement due to facial scarring. A multiplicity factor of .2 was applied for the synergistic effect of the injuries. Additionally, the ALJ imposed a 15 percent statutory penalty under § 287.120 RSMo 1994 ¹ for the employer's violation of §§ 292.490 and 292.500. The total award was $70,967.28. The Commission affirmed the ALJ's entire award. This appeal now follows.

In its first point on appeal, employer argues that the Commission erred in assessing a penalty under § 287.120.4 for the employer's alleged violation of safety statutes.

Section 287.120.4 provides that:

Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent.

Claimant stated that his injury was caused by the employer's failure to comply with safety statutes §§ 292.490 and 292.500. Those statutes require the construction of intermediate supports for bar joists and the construction of a temporary floor during the construction of a building. The Commission found that employer had violated these two safety statutes, and that the violation had caused claimant's injuries.

On appeal, employer argues that it did not violate the two safety statutes because § 292.450 states that the statutes "apply only to cities that now have or may hereafter have a population of fifty thousand or more inhabitants."

Employer argues that the accident did not occur in a city with a population of 50,000 or more. Claimant testified that the accident occurred on Manchester Road in the Ballwin area. Claimant, however, stated that he could not remember the exact location of the accident. No other evidence of the accident's location was produced. Furthermore, there was no evidence that the accident occurred within the boundaries of Ballwin nor within any specific city having a population of 50,000 or more.

Although claimant apparently concedes that the accident did not occur in any city with a population of 50,000 or more, he argues that the statute should be liberally interpreted. Claimant contends that this minimum city population statute was enacted to ensure that the safety procedures outlined in § 292.490 and § 292.500 are followed in heavily populated areas. Claimant argues that the evidence clearly established that the accident occurred in somewhere in the Ballwin area which is a heavily populated area in the St. Louis metropolitan region. Claimant contends it would be illogical to apply the statute strictly to cities with 50,000 or more residents and not to apply it to densely populated metropolitan areas which might not technically have 50,000 residents within a given city's boundaries.

While claimant's argument is appealing, we cannot rewrite statutory language. Although we found no case law interpreting this particular statute, where statutory language is clear and unambiguous, there is no room for construction. Hatfield v. McCluney, 893 S.W.2d 822, 825 (Mo...