Loyd v. Ozark Electric Cooperative

• Decision Date: 01 October 1999
• Citation: 4 S.W.3d 579
• Parties: (Mo.App. S.D. 1999) Karan Loyd, Robert Paul Loyd, and Matthew Dean Loyd, Claimants-Respondents, v. Ozark Electric Cooperative, Inc., Employer-Appellant, and Missouri Electric Cooperatives' Insurance Plan, Insurer-Appellant. 22827
• Court: Missouri Court of Appeals

4 S.W.3d 579 (Mo.App. S.D. 1999)

Karan Loyd, Robert Paul Loyd, and Matthew Dean Loyd, Claimants-Respondents, v. Ozark Electric Cooperative, Inc., Employer-Appellant, and Missouri Electric Cooperatives' Insurance Plan, Insurer-Appellant.

22827

Missouri Court of Appeals Southern District

10/01/99

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Rodric A. Widger

Counsel for Respondent: Patrick J. Platter

Opinion Summary: None

Garrison, C.J., and Montgomery, P.J., concur.

James K. Prewitt, Judge

Robert Steven Loyd died while trying to repair with another lineman an underground pad-mounted transformer owned by his employer, Ozark Electric Cooperative, Inc., in Greene County, Missouri. His dependents filed a claim seeking death benefits under the Workers' Compensation Act and then later, a fifteen percent penalty pursuant to Section 287.120.4, RSMo 1994. They were awarded both, and the Employer and Insurer appeal. They contest only the assessment of the fifteen percent penalty.

Robert Steven Loyd and Steven Swearingen were employees of Ozark Electric Cooperative, Inc., a rural electric service cooperative. Loyd had been employed as an apprentice lineman for approximately six to nine months, having previously worked in line construction. Swearingen was a lead lineman, employed with Ozark Electric for some eleven years.

On the evening of July 4, 1994, both men responded to a power outage call at the Walnut Hills subdivision in Greene County. Its residents are provided electrical service via underground lines. Having replaced a blown fuse they believed to have caused the outage, they returned to the James River office. From there, they drove their separate vehicles to Swearingen's home to unload a wire spool. Upon their arrival at Swearingen's home, they were dispatched again to the same subdivision and informed that power had not been restored to all homes.

Returning to the subdivision after dark, they located the transformer they believed to be causing the problem along the eastern boundary, and determined that an elbow connection had burned and separated. The affected transformer was located/positioned some two feet from a metal chain link fence (industry standards require 10 feet of clearance), with its access panel facing the fence. It was mounted on a concrete pad (hence, "pad-mounted transformer") and was one of a series of transformers in an underground electrical distribution system. Typically, such a system distributes unreduced electrical voltage from one transformer to another transformer in a straight line without interruption or change in direction. The transformers in turn reduce electric voltage to the level of household current for residential homes.

Believing that repair of the elbow connection could be made after eliminating the power source elbow from a nearby transformer, they did so. They were working under the assumption that by shutting down power at that transformer, the electrical current flowing to the transformers to the south of it would also be terminated. Such was not the case here. The presence of a double, or "Y", elbow confused them. There was no indication visible on the equipment indicating that power was distributed in two directions, one running to the north and another running to the south. In actuality, disconnecting one elbow at that point only succeeded in terminating the power running to the north of that transformer; power to the south of it had not been terminated.

Uncertain that the disconnection indeed terminated the power to the damaged transformer, the two returned to the damaged transformer, where they proceeded to test whether it was de-energized. As Loyd stood between the transformer and the metal chain link fence, holding a flashlight, Swearingen attempted to remove the plastic casing, thereby exposing the electrical wiring. Swearingen testified that at that time he saw a flash which burned his right arm. Loyd was struck by the voltage as it arced from the transformer to the chain link fence. He died later. The cause of death was "probable electric shock."

Loyd died at Transformer #13-14, which is immediately south of Transformer #11-12. A plat of the subdivision where the accident occurred shows a "takeoff pole" located in the northeast corner of the subdivision. The takeoff pole connects the main trunk of electric line to various transformers located within the subdivision. From the takeoff pole, the electric line then runs in north/south directions around the eastern and western boundaries of the subdivision, and in the middle. The lines connect to pad-mounted transformers, usually located at every other property line.

An electrical distribution system which runs in a straight line without interruption or change in route is a radial system. The electric lines in the subdivision where the accident occurred are designed for a radial system, with one critical exception. The "takeoff" pole fed electric current to Transformer #11-12, but the current stopped there, it did not feed electric current to Transformer #13-14, or other transformers south along the line. This meant that if the power were turned off at Transformer #11-12, the transformers south of it would still be carrying electrical current.

Loyd's wife filed a claim under Section 287.240, RSMo 1994, with the Division of Workers' Compensation, seeking compensation and death benefits. An amended claim for compensation was subsequently filed, contending that Employer was also liable for a penalty of 15% of compensation under Section 287.120.4, RSMo 1994, for violation of Section 292.020, RSMo 1994.

Following a hearing held October 8, 1997, the Administrative Law Judge concluded that Employer's failure "to tag the cables in order to apprise employees of the direction of electric current and failure to train employees concerning the use of 'Y' elbows constituted a violation of Section 292.020, RSMo 1994 and that such violations were substantial factors towards the death of Loyd." The Division awarded Claimants the additional 15% penalty, and Employer appealed to the Labor and Industrial Relations Commission.

Adopting and incorporating the conclusions and rulings of the Administrative Law Judge, the Commission affirmed the award and decision. Employer and Insurer appeal the final award allowing compensation.

Our review of the Labor and Industrial Relations Commission's findings is limited to a review of questions of law. This court will modify, reverse, remand or set aside an award only if the Commission acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495, RSMo. 1998. When reviewing the sufficiency of the evidence, this court is limited to determining whether the Commission's award is supported by competent and substantial evidence on the whole record. The evidence and inferences are reviewed in the light most favorable to the award, and the Commission's findings will be set aside only when they are clearly contrary to the overwhelming weight of the evidence. Akers v. Warson Gardon Apartments, 961 S.W.2d 50, 52-53 (Mo.banc 1998).

The review is conducted in two steps. First, we determine whether the whole record, viewed in the light most favorable to the decision, contains sufficient competent and substantial evidence to support the Commission's decision. If we find that it does, then the second step requires us to consider all the evidence, including evidence not favorable to the decision, to make a determination as to whether the decision is against the overwhelming weight of the evidence. Putnam-Heisler v. Columbia Foods, 989 S.W.2d 257, 258-59 (Mo.App. 1999).

The Commission ruled in favor of the claimants, awarding compensation and an additional 15% penalty pursuant to Section 287.120(4), RSMo 1994, for violation of Section 292.020, RSMo 1994, requiring guarding of dangerous industrial machinery and equipment, or warning of the dangers when guarding is not possible. The Employer appeals, contending there was no competent and substantial evidence to support the commission's decision.

In this case, the Commission adopted the findings of the Administrative Law Judge (the ALJ). The ALJ's award, therefore, is reviewed as part of the Commission's decision. See Reese v. Coleman, 990 S.W.2d 195, 197 n.2 (Mo.App. 1999).

Appellants' first point claims the evidence did not support a finding that Section 292.020, the "guarding statute," was applicable to this case because: (a) it is not an "establishment" under the statute, and (b) the transformer is not a "machine" under the statute. If Section 292.020 is applicable, then Section 287.120.4 allows the compensation and death benefit to be increased by fifteen percent. These statutes are set forth below.¹

When interpreting statutes, the primary role of the courts is to ascertain the intent of the legislature from the language used in the statute. Statutory words and phrases are given the plain and ordinary meaning, and this meaning is generally derived from the dictionary. When no ambiguity exists, there is no need to resort to rules of statutory construction. Akers, 961 S.W.2d at 53. An "establishment" is defined as an institution or a place of business. Black's Law Dictionary 546 (6th ed.1990). Applying this definition to Employer, it would be subject to the guarding statute.

Case law has construed Section 292.020 broadly and liberally to provide coverage to employees. In Stoll v. Frank Adam Elec. Co., 299 Mo. 25, 240 S.W. 245, 246-47 (1922), the court interpreted the legislative intent behind this statute as follows:

We think the Legislature, by the enactment of this statute, intended to afford the same protection to employees in "other establishments," while engaged in their ordinary duties, if such duties required...