Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 23, 2018

 

 

CLAIM NO. 201459291

 

 

TYSON FOODS INC.                               PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. CHRISTINA D. HAJJAR,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

HENRY JEWELL

AND HON. CHRISTINA D. HAJJAR,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Tyson Foods Inc. (“Tyson”) appeals from the August 24, 2017 Order and the November 20, 2017 Opinion, Award and Order rendered by Hon. Christina D. Hajjar, Administrative Law Judge (“ALJ”) awarding Henry Jewell (“Jewell”) permanent partial disability benefits enhanced pursuant to KRS 342.165 due to Tyson’s safety violation.  The ALJ determined Tyson waived its defense of a safety violation, a finding it challenges on appeal.  For the reasons set forth herein, we affirm.

          Jewell filed his claim on April 13, 2017, alleging an injury to both eyes on November 13, 2014 when he was using a high-pressure water hose that struck him in the right eye.  Jewell also alleged a safety violation pursuant to KRS 342.165.  Form 101 instructs the claimant to file a Form SVC within 15 days.  The May 17, 2017 scheduling order directed Tyson to file its Notice of Claim Denial or Acceptance (Form 111) within 45 days, and instructed that if no Form 111 is filed, the allegations of the application shall be deemed admitted.

          Counsel for Tyson filed a notice of representation on May 19, 2017.  On June 9, 2017, Tyson moved for a more definite statement regarding Jewell’s allegation of a safety violation.  It also filed a notice of disclosure, indicating counsel had requested any and all documentation responsive to the issue of a safety violation.  Tyson filed its Form 111 on the same date, accepting the claim as compensable but indicating, “Discovery is ongoing, but at this time Tyson Foods, Inc. disputes the alleged safety violation, and it does not appear that Plaintiff’s alleged left eye injury is related to the work incident.”  Tyson filed a second notice of representation on June 9, 2017. 

          Jewell filed a Form SVC on June 19, 2017, indicating he was struck in the eye by a metal part at the end of a high pressure water hose that was missing necessary equipment which would have prevented the injury.  In a June 26, 2017 Order, the ALJ concluded Jewell’s Form SVC satisfied Tyson’s request for a more definitive statement.

          On June 27, 2017, Jewell moved for production of his personnel file.  Tyson filed a notice of disclosure on June 29, 2017, indicating counsel had requested the OSHA history and any/all documentation responsive to the safety violation issue.

          Tyson filed a special answer on July 31, 2017, raising the defense of Jewell’s safety violation.  It asserted the special answer was timely because the documents giving rise to the defense “were only recently discovered by the undersigned counsel, in response to a routine discovery request from Plaintiff’s counsel.”

          Tyson simultaneously filed a Disciplinary Action Notification on August 1, 2017.  The December 13, 2014 form indicates Jewell failed to wear proper eye protection and did not have a gun at the end of the high-pressure hose on November 13, 2014, in violation of company policies.

          On August 3, 2017, Jewell moved to strike the special answer, noting Tyson filed the answer more than 45 days after issuance of the scheduling order.  He noted the documents were in the actual possession of Tyson and its failure to provide them to counsel until Jewell’s discovery request is not justification for the untimely filing of the special answer.  In its August 9, 2017 response, counsel indicated she relied on the plant nurse as a liaison for providing documents.  Counsel asserted the nurse, who is not an attorney, cannot be expected to know and understand technical legal criteria for filing a special answer and should not be held to the same standard as an attorney.  The claim had been accepted as compensable at the time it was assigned to counsel, and it was not until the entire file was requested by Jewell that counsel became aware of the potential employee safety violation.  

          The ALJ sustained Jewell’s motion to strike the special answer by order dated August 24, 2017:   

Defendant filed the Special Answer thirty days after the forty-five (45) deadline to file a Special Answer. Defense counsel argued that because she was not aware of the safety violation until Plaintiff requested his entire personnel file, the Special Answer was filed as soon as she was put on notice of a potential safety violation. Defense counsel argued that the employer liaison would not have known that such information was relevant, as she is not expected to know the workers' compensation regulations. She further argued that whether the failure to use the safety equipment properly in conjunction with the accident gives rise to a safety accident will still need to be discovered.

 

The ALJ finds that the Defendant failed to prove that the discovery of the potential safety violation could not have been had earlier in the exercise of due diligence. Defense counsel did not indicate that she would have ever received the entire personnel file if Plaintiff had not requested it, or that there were circumstances preventing her from receiving it sooner. Further, Defendant had the information in its control on or before July 1, 2017, the day the notice of claim denial and special answer were due. Defense counsel filed a notice of representation on June 9, 2017, but the special answer was not filed until July 31, 2017. Further, Defendant's argument that the employer liaison should not be expected to know the regulations is not relevant. Since the special answer was not filed within 45 days, Defendant had to prove that the safety violation could not have been discovered sooner with the exercise of due diligence. The ALJ finds that there is insufficient evidence to show that Defendant acted with due diligence. Further, Defendant did not file the Form SVE as required under 803 KAR 25:010 Section 7(2)(d). For these reasons, the ALJ finds that the Safety Penalty defense is waived.

 

          On September 6, 2017, Tyson petitioned for reconsideration of the August 24, 2017 Order and a motion for leave to file a Form SVE.  In a September 20, 2017 Order, the ALJ denied the petition for reconsideration as an impermissible re-argument of the original motion.  The ALJ provided the following additional explanation for her ruling:

The ALJ still finds that Defendant has failed to prove that it acted with due diligence in raising the safety violation defense. Defendant argues that the review of the entire personnel file would be cost prohibitive in all of defense counsel's pending claims. However, it is Defendant's burden to prove it could not have been discovered without due diligence. The document in question could have been discovered by other means, such as by requesting documents relative to disciplinary action as a result of the injury, interviewing the employee's supervisor, or asking the liaison if there was any indication that Plaintiff had not followed a safety rule. In this particular case, the alleged failure to follow the safety rule would have been obvious to the employer liaison since there was documentation of the disciplinary action related to the injury. Thus, the ALJ finds that Defendant has not proven that the safety violation could not have been discovered sooner with due diligence.

 

          In the subsequent November 20, 2017 Opinion, Award and Order, the ALJ further explained:      

Defendant alleges that Plaintiff committed a safety violation. However, upon Plaintiff’s Motion, the ALJ struck Defendant’s Special Answer and found that Defendant had waived the issue by failing to file the Special Answer with the Form 111 or within ten (10) days after discovery of the facts supporting the defense. The ALJ made this determination because Defendant had the disciplinary form in its possession, but the safety violation was not alleged until 30 days after the Form 111 was due, and Defendant failed to prove how the discovery could not have been had earlier in the exercise of due diligence. Defendant argues that crucial facts are sometimes not found until discovery. However, in this case, Defendant had the information upon which it relied for the safety violation well before Defendant raised the issue. Additionally, Defendant’s argument is simply a re-argument of the ALJ’s prior orders. Thus, the ALJ again finds that the safety violation was waived.

 

          On appeal, Tyson argues it did not waive the safety violation defense.  Tyson’s counsel asserts that she acted with due diligence by requesting the personnel file in response to Jewell’s request for production.  It was not until counsel obtained the complete file that she was aware Jewell had been disciplined for failing to use safety equipment.  She also argues the ALJ failed to define “due diligence” and, regardless, Tyson employees should not be held to the same standard as counsel. Additionally, Tyson argues its failure to file a timely Form SVE did not constitute a waiver. 

          We begin by noting 803 KAR 25:010 § 7(2)(d) requires a defendant to file a special answer to assert a special defense within 45 days of the scheduling order, or 10 days after the discovery of the facts supporting the defense if discovery could not have been had earlier in the exercise of due diligence.  The regulation specifically provides that a special defense is waived if not timely raised. 

          Tyson’s special answer was not filed within 45 days of the scheduling order.  Therefore, it attempted to argue the facts supporting its defense could not have been discovered earlier through the exercise of due diligence.  The ALJ rejected this argument.  Because Tyson bore the burden of proving its special defense, the ALJ’s conclusions will only be reversed if the evidence compels a contrary result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).      

          As noted by the ALJ, Tyson had possession of the facts related to Jewell’s alleged safety violation because it had cited him for failure to wear proper eye protection and failure to use a gun at the end of the high-pressure hose.  The December 13, 2014 disciplinary citation issued to Jewell remained in Tyson’s possession at all times.  Further, Tyson was on notice of an alleged employer safety violation when Jewell filed his application on April 13, 2017.  Moreover, when Tyson filed a notice of disclosure on June 9, 2017, its counsel indicated she had requested the OSHA history and any/all documentation responsive to Jewell’s allegation of a safety violation.  These circumstances provide the requisite substantial evidence to support the ALJ’s determination Tyson could have discovered the facts supporting its defense through the exercise of due diligence. 

          Tyson asserts the due diligence standard does not apply to the employer or its employees, but only to counsel.  803 KAR 25:010 §7(2)(d) repeatedly refers to the “defendant’s” obligations with respect to special defenses.  Counsel is not a defendant to this action.  Tyson, as the employer, is the named defendant and party to this claim.  The obligation lies with the defendant, and it is counsel’s duty to explain the requirements to laypersons.           

          Tyson also argues it cannot be held to a standard of “due diligence” because that term is not defined in KRS Chapter 342 or its corresponding regulations.  Counsel offers competing definitions of the term and urges application of the definition contained in earlier editions of Black’s Law Dictionary:

Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.[1] 

 

          We need not engage in an advanced linguistic analysis when statutory language is plain, simple and easily understood.  The common understanding of “due diligence” is the prudence exercised by a reasonable person, an understanding supported by over 150 years of Kentucky jurisprudence.  The ALJ was not obligated to provide a legal definition of due diligence.      

          Tyson’s arguments regarding the failure to timely file a Form SVE are irrelevant.  Tyson had waived the defense prior to its attempt to file the Form SVE, as explained above.  Significantly, it did not attempt to file the Form SVE until after the ALJ had issued the August 24, 2017 order finding Tyson had waived the defense.  Tyson filed its motion to file the Form SVE in an attempt to revive the defense after the ALJ determined Tyson had waived the defense.  The ALJ’s statement regarding the failure to file a Form SVE likely reflects her recognition that the filing of a Form SVE might have been considered as an assertion of the affirmative defense had the form been filed in a timely manner.  It cannot be said the ALJ’s conclusions are so unreasonable as to compel a different result.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          Accordingly, the August 24, 2017 Order and the November 20, 2017 Opinion, Award and Order rendered by Hon. Christina D. Hajjar, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON JO ALICE VAN NAGELL

300 E MAIN ST #400

LEXINGTON, KY 40507

 

COUNSEL FOR RESPONDENT:

 

HON JERRY RHOADS

9 E CENTER ST

MADISONVILLE, KY 42431

 

ADMINISTRATIVE LAW JUDGE:

 

HON CHRISTINA D HAJJAR

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601