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August 18, 2017 201559605

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  August 18, 2017

 

 

CLAIM NO. 201559605

 

 

JUDY CONSTRUCTION                              PETITIONER

 

 

 

VS.        APPEAL FROM HON. MONICA RICE-SMITH,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

SHAWN SMITH and

HON. MONICA RICE-SMITH,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.  Judy Construction appeals from the May 9, 2017 Opinion and Award rendered by Hon. Monica Rice-Smith, Administrative Law Judge (“ALJ”) awarding Shawn Smith (“Smith”) temporary total disability (“TTD”) benefits, permanent partial disability benefits increased by the three multiplier pursuant to KRS 342.730(1)(c)1, and medical benefits for multiple injuries he sustained on December 2, 2015.  Judy Construction also appeals from the June 8, 2017 order on petition for reconsideration.

     The sole issue on appeal is whether the ALJ erred in declining to reduce Smith’s award of benefits by 15% pursuant to KRS 342.165(1).  Because the ALJ properly exercised her discretion, her determination is supported by substantial evidence, and no contrary result is compelled, we affirm.

     Smith filed a Form 101 alleging he sustained multiple injuries on December 2, 2015 when he fell approximately forty feet from a bridge while working as a general laborer for Judy Construction.  Smith began working for Judy Construction on January 2, 2015.  He has not returned to work since the December 2, 2015 accident. 

     Judy Construction filed a Form 111 denying the claim, and asserting a safety violation by Smith pursuant to KRS 342.165.  Judy Construction attached a Form SVE, and identified the following safety rule/regulation Smith allegedly failed to follow:  “Section 1926.760(a) requires that an employee ‘tie off’ when working on a surface more than 15 [sic] above level.  Plaintiff was not wearing a safety harness at the time of the fall, and same were made available to employees.”  Judy Construction alleged that if Smith had been properly tied off at the time of the fall, he would not have been injured.  Judy Construction did not attach or subsequently file any supporting documentation or additional evidence outside of Smith’s testimony. 

     Smith testified by deposition on February 15, 2015, and at the hearing held March 22, 2017.  Smith was born in November 1983 and resides in Campton, Kentucky.  He graduated from high school and has no specialized or vocational training.  Smith held a position as a CNC operator for approximately six years before he began working as a general laborer at Judy Construction on January 2, 2015.  His primary duties involved pouring and finishing concrete, operating machinery such as a backhoe, jackhammer and bulldozer, and utilizing other tools and equipment.  Smith described his job as physically demanding and estimated he lifted approximately seventy pounds on a daily basis.

     Smith testified that Judy Construction provided a safety harness, which he wore daily.  He typically wore a full body harness, which had a cord on the back which is utilized to tie off.  Smith testified the harness had to be removed when he used the restroom.  Smith also testified safety procedures were reviewed before every shift.  Smith agreed Judy Construction had a policy requiring all employees to wear a harness.      

          Smith testified that on December 2, 2015, he had been working on a bridge.  He wore his safety harness and hard hat the entire day.  At approximately 3:00 p.m., near the end of his shift, Smith had to use the restroom.  At his deposition, Smith provided the following testimony of the events leading up to the fall off the bridge:   

A:  Actually, I was going to use the bathroom.

 

Q:  Okay.

 

A:  And I took off my harness and stuff, and my supervisor told us to take that last form down when we were going home, and I jumped back across, and my friend, Charlie, the guy I was working with, hit that form with a spud bar to turn it loose from the wall, and it just knocked me off. 

 

Q:  Okay.  So I’m- -sorry, I’m just not very good with construction things sometimes.  So you were going to go to the bathroom, you took your harness off, and your supervisor- -what was he telling you to do?

 

A:  He told us to knock the last form, the last form down.

 

Q:  Okay.

 

A:  So I jumped back across and my friend hit it with the spud bar - -

 

Q:  Okay.

 

A:   - - and that knocked me off the walkway.

 

. . . .

Q:  Okay.  And, I think, you answered this too but, I’ll ask you anyway.  Why didn’t you have a harness on when it happened?

 

A:  That’s where-I just had took it off and I just- -I mean, it was just- -I wasn’t thinking.  I mean, really honestly I was just in a hurry to just - - something I didn’t- -I mean, I always wear my harness, always, and it was just a - -

 

. . .

 

Q:  Okay.  Now, on the day of the accident you had taken off your harness, you were going to the bathroom?

 

A:  Uh-huh, (affirmative).

 

Q:  And your supervisor called you take off another form?

 

A:  He said, “Hey boys, take down that last form, and then we’ll cleanup and go onto the house.”

 

Q:  Okay.  So it was, like, a last minute task?

 

A:  Yes, so I was like, well, I’ll jump across, and then use the bathroom after that.

 

Similarly, at the hearing Smith stated as follows:

A:  Well, I was- - I wasn’t- - I had to use the bathroom, and I’d come across the bridge and I’d took my harness off.  And our boss hollered and told us to take the last form down.  And without - - I just jumped across, and the form was already loaded, so I was just go to - - And the guy I was working with hit the form with a spud bar, and it was already unattached from the concrete and it just hit me and knocked me off.

 

Q:  When you jumped back to get that form, did the boss yell at you to stop or get our harness back on or anything?

 

A:  No.

 

Q:  Did you even think about that at the time?

 

A:  No.

 

Q:  And what time. . .timeframe between when you turned- - How long a timeframe was it between when you took off your harness, when the boss yelled at you to take that last form down. 

 

A:  Like five minutes.

    

Q:  Okay.  Had you already gone to the bathroom or coming back?

 

A:  I was coming back.

 

Q:  Okay.  Had you actually started doing anything after you’d come back from the restroom?

 

A:  I hadn’t - - I hadn’t even made it to the restroom whenever he hollered and told us to go ahead and knock down that last form down and we’d go home.  So I was like I’ll just grab it and go use the bathroom then.   

 

          Smith estimated he fell approximately fifty feet and landed on a large rock.  Although Smith was not wearing the safety harness at the time of his fall, he was still wearing his hard hat.  Prior to the fall, Smith had never been reprimanded or written up by Judy Construction for failure to wear safety gear. 

          An ambulance transported Smith to the emergency room to the University of Kentucky Medical Center.  Smith was treated for several fractures in his pelvis, a fractured skull, crushed wrists, and multiple rib fractures.  During his fourteen-day stay, Smith underwent a splenectomy and surgery on his right wrist.  Smith subsequently returned to the hospital, and underwent bowel surgery.  Thereafter, Smith followed up with Dr. Daniel Primm for his wrist injuries.  He last treated with Dr. Primm in August 2016.  Smith does not currently take any medication for his injuries despite continuing to experience symptoms in his right wrist, right hand, pelvis, hip, and back.  Smith does not believe he can return to work for Judy Construction. 

          Smith filed the records from University of Kentucky Healthcare documenting his treatment following the December 2, 2015 fall, as well as the January 20, 2017 report by Dr. Gregory Grau.  Judy Construction filed Dr. Primm’s February 21, 2017 report.  We will not further discuss the medical evidence since the sole issue on appeal regards the application of KRS 342.165(1).   

          A benefit review conference was held on March 7, 2017.  The parties stipulated Smith sustained work-related injuries on December 2, 2015, for which Judy Construction received due and timely notice.  Judy Construction paid TTD benefits from December 3, 2015 through April 25, 2016, as well as medical expenses.  The parties identified the following contested issues:  benefits per KRS 342.730, work-relatedness/causation, unpaid or contested medical expenses, KRS 342.165 violation, capacity to return to work, and TTD underpayment regarding rate only.  Subsequently, the parties added duration of TTD benefits as a contested issue and withdrew the issue of work-relatedness/causation.        

          In the opinion, the ALJ found Dr. Primm’s opinions most persuasive and adopted his 17% impairment rating.  The ALJ also found Smith does not retain the physical capacity to return to the work as a general laborer doing bridge construction, and increased his benefits by the three multiplier pursuant to KRS 342.730(1)(c)1.  The ALJ additionally found Judy Construction underpaid TTD benefits from December 3, 2015 through April 25, 2016.  She also determined Judy Construction owes additional TTD benefits from April 25, 2016 through September 6, 2016, the day he reached maximum medical improvement. 

          In finding the 15% safety violation not applicable, the ALJ provided the following analysis: 

KRS 342.165(1) provides as follows as applies to the issues in the present claim:

 

If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful or reasonable order or administrative regulation of the executive director or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable under this chapter, shall be decreased fifteen percent (15%) in the amount of each payment.

 

The purpose of KRS 342.165 is to reduce the frequency of industrial accidents by penalizing those who intentionally fail to comply with known safety regulations.  The application of the safety penalty requires proof of two elements.  First, the record must contain evidence of the existence of a violation of a specific safety provision, whether state or federal.  Second, there must be evidence of “intent” to violate a specific safety provision.

 

“Intentional failure” must be more than simple negligence. Penalties pursuant to KRS 342.165 (1) are punitive in nature, and require a level of conduct by a party equivalent to malfeasance, rather than misfeasance or nonfeasance. Terry v. AFG Industries, WCB Opinion No. 00-94292 (January 2, 2003).  The party must have an immediate cognizance that the conduct causing the injury is in contravention to the policy or regulation. Barmet of Kentucky v. Sallee, 605 S.W.2d 29 (KY APP 1980).

 

In this case, there is no evidence that Plaintiff consciously disregarded or willfully ignored using his safety harness. Plaintiff had worn his harness all day and was wearing his hard hat. On this occasion, after taking his harness off to go to the bathroom near the end of the day, he simply without thinking went to help get the last form down after his supervisor said once that was done they would get ready to head home. In that moment while trying to hurry to go home, Plaintiff inadvertently forgot to put back on his harness. The accident occurred not as result of any willful misconduct of the Plaintiff but due to a simple act of negligence. Based on the forgoing law and facts, the 15% penalty is not applicable.

 

          Judy Construction filed a petition for reconsideration requesting the ALJ remove the 0.2 education factor from the award of PPD benefits since Smith had completed the twelfth grade.  It also argued the ALJ erred in declining to reduce the award by 15%, relying on Hornback v. Hardin Memorial Hospital, 411 S.W.3d 220 (Ky. 2013).  Judy Construction also argued the ALJ substituted her own opinion for the facts when she stated Smith did not willfully ignore or consciously disregard using his safety harness.  Judy Construction requested the ALJ reconsider her opinion in light of its arguments. 

          In the order on petition for reconsideration, the ALJ amended the award of PPD benefits by removing the 0.2 educational factor.  The ALJ denied the remainder of Judy Construction’s petition, stating as follows:

The Defendant/Employer argues the denial of the 15% safety penalty is a patent error and sights to the test in Hornback v. Hardin Memorial Hospital, 411 S.W.3d 220 (KY 2013). After considering Hornback and rereading the evidence, the ALJ’s opinion is unchanged. Hornback deals with determining when an employer’s violation of the general-duty provision warrants enhancement under KRS 342.165(1). Hornback specifically held “In order for the general-duty provision to warrant enhancement under KRS 342.165(1), the employer must be found to have intentionally disregarded a safety hazard that even a lay person would obviously recognize as likely to cause death or serious physical harm. This case involves the employee’s failure to wear safety equipment.

Finally, the Defendant/Employer argues that the ALJ substituted her own opinion for the facts.  However, the ALJ has sole discretion to evaluate the weight of the evidence presented. Whittaker v. Rowland, 998 S.W.2d 479 (KY 1999). Pursuant to Terry v. AFG Industries, WCB Opinion No. 00-94292 (January 2, 2003), the ALJ must conclude or infer from the evidence that there was some degree of conscious indifference to the consequences of the act. See also Swifty Transportation v. Pryor, WCB Opinion No. 2013-80504 (January 30, 2015).  The ALJ did not find sufficient evidence to conclude Mr. Smith had any conscious indifference to the consequences of his jumping on the bridge.  The ALJ found that Mr. Smith acted negligently.  Mr. Smith testified he had been wearing his safety harness all day and had only taken it off to go to the bathroom. Then he testified that after being advised once the final form was down they could go home, he did not think and just jumped over on the bridge to help get the form.

 

 

          On appeal, Judy Construction argues the ALJ erred in not reducing Smith’s award by 15% in light of the facts of the case.  Judy Construction asserts Smith testified to his “intentional” failure to use the safety apparatus it furnished and to obey its safety rules.  Judy Construction points to Smith’s testimony he was in a hurry when he failed to put his safety gear back on and he knew it had a policy requiring him to wear the safety harness.  Therefore, Judy Construction argues Smith, “intentionally failed to obey reasonable safety-related commands of the Petitioner/ Employer, and failed to use the personal protective equipment required.”  Thus, Smith’s award should have been reduced by 15% due to his own willful safety violation.

          Judy Construction also argues Hornback v. Hardin Memorial Hospital, supra, which held the statute refers to the intentional disregard of a safety rule and applies even if a lay person would recognize the action as likely to cause serious physical harm is most applicable to this case.  Judy Construction states although Hornback involved an employer violation, the holding should be applied to both employers and employee violations.  Judy Construction states Smith’s testimony establishes he intentionally disregarded a safety hazard and is a scenario even a lay person would recognize as likely to cause serious physical harm.

          Finally, Judy Construction argues the ALJ substituted her own opinion for the facts when she stated Smith did not willfully ignore or consciously disregard using his safety harness.

As the claimant in a workers’ compensation proceeding, Smith had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  However, Judy Construction had the burden of establishing the affirmative defense pursuant to KRS 342.165(1).  See Teague v. South Central Bell, 585 S.W.2d 425 (Ky. App. 1979).  Since Judy construction was unsuccessful in that burden, the question on appeal is whether upon consideration of the whole record, the evidence compels a finding in its favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Compelling evidence is defined as evidence so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences which otherwise could have been drawn from the record.  Whittaker v. Rowland, supra.  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

          The purpose of KRS 342.165 is to reduce the frequency of industrial accidents by penalizing those who intentionally fail to comply with known safety regulations. See Apex Mining v. Blankenship, 918 S.W.2d 225 (Ky. 1996). The burden is on the claimant to demonstrate an employer’s intentional violation of a safety statute or regulations, and conversely, the burden is upon the employer to establish an employee’s intentional violation. See Cabinet for Workforce Development v. Cummins, 950 S.W.2d 834 (Ky. 1997).

          KRS 342.165(1) provides:

. . . . If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable under this chapter shall be decreased fifteen percent (15%) in the amount of each payment.

 

          The application of the safety penalty requires proof of a violation of a specific safety provision, whether state or federal.  Second, evidence of “intent” to violate a specific safety provision must also be present.  Finally, the violation must be a cause of the accident.  Application of KRS 342.165 does not automatically flow from a showing of a violation of a specific safety regulation followed by a compensable injury.  Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). 

          Here, the ALJ determined Smith did not intentionally violate a safety rule, and outlined her reason for doing so.  The ALJ found persuasive Smith’s testimony he had worn his safety harness and hard hat for the entire day prior to the accident.  He removed his harness near the end of his workday in order to use the restroom.  At that time, his supervisor told the crew to take down the last form and then they could go home.  Smith testified that he “wasn’t thinking” and was “in a hurry” when he jumped back across the bridge without his safety harness on.  The ALJ concluded, “In that moment while trying to hurry to go home, Plaintiff inadvertently forgot to put back on his harness. The accident occurred not as result of any willful misconduct of the Plaintiff but due to a simple act of negligence.”  We believe the ALJ acted within her authority in drawing this conclusion from Smith’s testimony.  As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence, and reasonable inferences to be drawn.  Square D Co. v. Tipton, supra.  Miller v. East Kentucky Beverage/Pepsico, Inc.,  supra.  We note Judy Construction provided no additional evidence regarding the safety violation. 

          The ALJ provided additional findings in the order on petition for reconsideration.  The ALJ cited to two Board opinions, Terry v. AFG Industries, WCB Opinion No. 2000-94292 (January 2, 2003), and Swifty Transportation v. Pryor, WCB Opinion No. 2013-80504 (January 30, 2015), in support of her opinion.  In Terry v. AFG Industries, we stated the following regarding the element of intent: 

Inadvertent negligence by the employee is not enough. There must be a level of awareness by the party not merely with regard to the existence of a safety regulation or policy, but an immediate cognizance that the conduct causing the injury is in contravention to the policy or regulation. Barmet of Kentucky v. Sallee, Ky. App., 605 S.W.2d 29 (1980).  In other words, the injury must be the result of conscious wrongdoing. The act causing the injury must be desired by the doer, and the consequences reasonably foreseeable. The violation must be advertent and rise to the level of at least reckless disregard or willful misconduct.  See, Larson’s Workers’ Compensation, § 31. Only then, if the accident caused by the employee is attributable “in any degree” to his failure to use any safety appliance furnished by his employer, or his failure to obey any lawful and reasonable order or administrative regulation of the Commissioner or his employer for the safety of employees or the public, shall the compensation for which his employer is liable be decreased by 15% in the amount of each payment.

 

In the instant claim, we agree with Terry that the record is devoid of any evidence indicating that he consciously disregarded the safety policies of AFG or willfully ignored the required use of various safety appliances to prevent the destabilization of containers and flatbeds for loading purposes. REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224 (1985). On this single occasion, after already loading several trucks that day and in a rush to do his job, he inadvertently forgot to make sure the appliances were locked into place. The accident occurred, therefore, not as a result of any willful misconduct on Terry’s part, but solely due to an act of simple negligence. Consequently, the ALJ’s application of the 15% penalty to Terry’s award was in error.

 

          Slip opinion at 10.

          After citing the two Board opinions, the ALJ additionally found insufficient evidence to conclude Smith had any conscious indifference to the consequences of his jumping on the bridge.  Rather, Smith acted negligently since he testified he had been wearing his safety harness all day and had only taken it off to go to the bathroom. He then stated he did not think when he jumped back onto the bridge when his supervisor told the crew they could go home once the final form was down.  The ALJ concluded Judy Construction failed to prove anything other than negligence.  The ALJ correctly held that mere negligence is insufficient to warrant application of KRS 342.165(1). 

          Finally, Judy Construction’s reliance on Hornback v. Hardin Memorial Hospital, supra, is misplaced.  In that case, while working as a custodian, Hornback was trapped in a stalled elevator.  The Employer’s security staff attempted to rescue her but, because of the attempt, Hornback fell several stories of the elevator shaft.  The ALJ enhanced Hornback’s award by 30% pursuant to KRS 342.165(1) based upon a violation of the general duties provision contained in KRS 338.031.  The Board affirmed, but the Court of Appeals reversed holding the record did not support the conclusion the Employer violated two of four factors set forth in Lexington–Fayette Urban County Government v. Offutt, 11 S.W.3d 598 (Ky. App. 2000).  The Kentucky Supreme Court reversed finding the ALJ reached the correct result, i.e., that all four factors of the Offutt test were satisfied. Hornback v. Hardin Memorial Hospital, 411 S.W.3d at 225-226.  The Court also noted, “in order for a violation of the general-duty provision to warrant enhancement under KRS 342.165(1), the employer must be found to have intentionally disregarded a safety hazard that even a lay person would obviously recognize as likely to cause death or serious physical harm.”  Id. at 226.    

          Hornback is distinguishable on two grounds, thus provides limited value.  First, it involves the allegation of an employer violation rather than an employee violation.  More importantly, the Claimant in Hornback alleged the employer violated the general duties provision contained in KRS 338.031, rather than a specific safety statute or regulation.  Only the alleged violation of the general duties provision triggers the four-factor test set forth in Lexington–Fayette Urban County Government v. Offutt, supra.  In this instance, Judy Construction alleged Smith violated a specific safety statute/regulation.  In its Form SVE, Judy Construction identified “Section 1926.760(a)” as the violated statute.  Therefore, the general duty clause contained in KRS 338.031 and the Offutt test is not implicated. 

          Accordingly, the May 9, 2017 Opinion and Award and the June 8, 2017 Order on petition for reconsideration rendered by Hon. Monica Rice-Smith, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

COUNSEL FOR PETITIONER:

 

HON RONALD J POHL

3292 EAGLE VIEW LANE, STE 350

LEXINGTON, KY 40509

 

COUNSEL FOR RESPONDENT:

 

HON JAMES R MARTIN, II

333 WEST VINE ST, STE 1200

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON MONICA RICE-SMITH

657 CHAMBERLIN AVE

FRANKFORT, KY 40601