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