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When an employer decides to take unreasonable risks in order to save money, it is usually the employees who suffer the consequences. This Missouri Workers’ Compensation decision shows how terrible those consequences can be. And, how unreasonable some employers can be in the pursuit of a little more profit.

Exclusive Remedy” in the Tank: A Sad Missouri Saga

Eric Burns drove a cement truck for Kennon Ready Mix. Because the job requires hosing down the chutes after delivery, cement trucks carry a pressurized water tank. When Burns noticed the tank on his truck leaking, he brought it to the attention of his supervisor, Lynn Smith.

“No problem,” said Smith. “I’ll fix it.” Smith spot welded the crack in the tank. Despite his doubts about the safety of the tank, which showed signs of corrosion, Burns ignored his wife’s advice to quit and find a better job. He could not afford to be out of work. On April 7, 2000, the tank exploded, virtually destroying Burns’s hip. He is now permanently disabled.

The question before the Missouri Supreme Court was whether Burns’s recovery was limited to workers comp or whether the negligence of his supervisor reached the level of “affirmative (negligent) action.” In other words, was the exploding tank a routine hazard of the job (and thus covered by comp’s “exclusive remedy”) or did it involve something over and beyond the hazards normally confronting a cement truck driver. (The court’s complete ruling, well worth reading, is available here.)

The facts in this sad story aligned pretty dramatically against Kennon Ready Mix:
– the tank was cannibalized from a decrepit, 30 year old vehicle rusting in the yard
– Smith was not a certified welder
– Smith admitted to having “poor vision” – which he corrected with “$2.00 reading glasses”
– evidence showed that the welding job was completely incompetent
– the metal in the tank was so corroded, not even a skilled welder could have fixed it
– Smith apparently told Burns to “drive the truck until it blows.”

When asked how he was able to complete the welding job despite his poor vision, Smith described his approach to the work as “kind of a feeling in the dark thing.”

Pinching Pennies
You’re probably wondering how much a new water tank costs. All of $400. Instead of making that modest investment in basic equipment, the employer chose to cut a corner. As a result, Burns, who is only 30, has already had three hip replacement surgeries and faces the prospect of additional surgeries every decade for the rest of his life.

The Supreme Court upheld the judgment of a lower court, which found that the affirmative negligence of the employer did indeed pierce the “exclusive remedy” provision of the comp statute. The court upheld the $2.6 million awarded by a jury. Not a lot of money in the context of Burns’s lifetime of suffering, but easily enough to buy a dozen brand new cement trucks, a couple hundred water tanks and a few pair of prescription lenses.

Unfortunately, it is very unlikely the Florida Supreme Court would rule in this worker’s favor. But, my partners and I continue to make the effort to obtain more than the standard workers’ compensation benefits when an employer acts this irresponsibly.

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