*/
Workers’
Compensation Board
OPINION
ENTERED: May 11, 2018
CLAIM NO. 201670366
MICHAEL STAMPER PETITIONER
VS. APPEAL FROM HON. GRANT
S. ROARK,
ADMINISTRATIVE LAW JUDGE
OKONITE COMPANY, INC.
and HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Michael Stamper (“Stamper”) seeks review of the November 17, 2017, Opinion,
Order, and Award of Hon. Grant S. Roark, Administrative Law Judge (“ALJ”)
finding he sustained a work-related head injury on August 24, 2016, as a result
of a fall into a concrete pit. The ALJ awarded temporary total disability
(“TTD”) benefits from August 25, 2016, through January 16, 2017, with a credit
to Okonite Company, Inc. (“Okonite”) for overpayment, and permanent partial
disability (“PPD”) benefits without enhancement by either multiplier contained
in KRS 342.730(1)(c). The ALJ determined a 30% enhancement of Stamper’s income benefits
pursuant to KRS 342.165 and KRS 338.031(1)(a) was not appropriate. Stamper also
appeals from the January 19, 2018, Order denying his petition for
reconsideration.
On appeal, Stamper challenges the ALJ’s award on two
grounds. First, he contends the ALJ erred in not enhancing his PPD benefits by
either the three multiplier contained in KRS 342.730(1)(c)1 or the two
multiplier set forth in KRS 342.730(1)(c)2. Next, Stamper contends the ALJ
erred in failing to enhance his income benefits for a violation of KRS 342.165.
Stamper’s Form 101 alleges that on August 24, 2016, he was
injured in the following manner: “Was on floor, leaned on what he thought was a
rail but was actually tape and he fell 7 to 8 feet and struck concrete.”
Stamper alleged injuries to multiple body parts.
Stamper testified at a June 16, 2016,
deposition and at the September 18, 2017, hearing. During his June 16, 2017, deposition testimony, Stamper testified he
was working as a craftsman’s helper when injured. He currently holds that same
position earning an increased hourly wage. He performs “exactly the same” work
performed prior to the fall. Stamper provided the following account as to how
the August 24, 2016, injury occurred:
Q: Let’s talk, then, about what
happened to you that day. Tell me – describe the scene and what was going on.
And this involves a pit we’re going to find out, I believe. Tell me what’s –
just kind of paint the background a little.
A: I was working in another part of the
plant and my supervisor called me on my two-way radio and told me to go to this
particular machine to help a maintenance man with a bearing.
Q: Okay. Let me just be rude and jump
in here. This machine you’re talking about, was this machine down in the pit?
A: Part of it was, yes.
Q: Okay. Describe this pit for me. Why
is there a pit and how deep is it and –
A: The exact measurement is roughly – I
don’t know the exact measurement, but around seven to eight foot. The pit was
made to put part of the machine that turns to pull the cable.
Q: So the machine was being installed
in this pit?
A: Yes.
Q: And you say there’s a person there
who was working on it and needed your help with some bearings?
A: Yes.
Q: Who was this person that was working
on the machine at the time?
A: Wayne Simpson.
. . .
Q: We’re back on. And you said that you
were helping – you were going to go to help Wayne Simpson work on a machine.
You said he had some difficulties with the bearings; is that correct?
A: Yes.
Q: What were you going to do? What was
your –
A: I was going to help him apply
grease.
Q: Okay. At the time of your fall,
where was Mr. Simpson?
A: He was down in the pit.
Q: How far below this walking surface
was he?
A: Seven to eight foot.
Q: How does one get in and out of that
pit to go in there and work?
A: At the time of my fall the only way
in was a step ladder.
Q: Was that ladder connected to the pit
somehow or how is it that you were able or Wayne was able to use that ladder?
A: I suppose he set it down in the pit.
Q: And just go ahead and – so you
approached the pit. Tell me what happened.
A: Well, there was probably maybe a
third of the lighting on at the time, so it was kind of dim and dark in there.
I approached the pit, walked up to Wayne, to the edge of the pit, put my elbows
on what I thought was a steel rail to ask Wayne what he needed. And at that
time I realized it was yellow tape.
Q: Okay. Let me ask you about the
lighting. You said there was only about a third of the lighting on at the time.
What do you mean by that?
A:
This was a new part of the plant that we were building. And they had not
had all the lighting installed.
Q: Was there any kind of skylight or
hole in the ceiling where you could see outside above this pit or in the
general area?
A: There are some skylights over there,
but I’m not real sure where they’re at.
Q: Okay. So you thought that the
lighting was not as good as it might have been?
A: It’s not as good as it is now.
Q: Well, that’s what I mean, yeah. You
say they were still in the process of installing the lighting.
A: Yes.
Q: Okay. How many sides to the pit were
there, four?
A: Four.
Q: And three of the sides did have
railing around it; is that correct?
A: Yes.
Q: What color was that railing?
A: Sawhorses, wood.
Q: Okay. And where you went to lean,
was this that yellow caution tape that we see around places?
A: Yes.
Q: Were you wearing a hard hat at the
time?
A: Yes.
Q: And your purpose in going to the
edge of the pit was to ask Wayne what tools or what he needed you to do?
A: What he needed, yes.
Q: Okay. So you then fell, I think,
head first into the pit; is that correct?
A: Yes.
Because his hardhat fell off, Stamper’s
head struck the concrete floor of the pit. He was told that when he fell into
the pit he landed on Wayne Simpson (“Simpson”). He denied losing consciousness.
Stamper testified the work he was to help Simpson perform could have been
accomplished if a guardrail had been erected instead of the yellow tape
stretched across one side of the pit.
At the hearing,
Stamper testified he had been dispatched to help Simpson in the new plant
addition. He estimated the lighting conditions were 60%. This was the first
time he had visited the actual pit where the machinery upon which Stamper was
working was located. He had been in the vicinity of the pit and noticed there
were sawhorses around it. Stamper did not know who removed the restraint on one
side of the pit and put up yellow tape. When shown pictures which depict wooden
railings around three sides of the rectangle pit, Stamper acknowledged railings
could have been erected around the pit, instead of sawhorses placed around the
pit. Stamper testified there should have been a railing on the side where the
yellow tape was strung with an opening in the railing wide enough to access the
stepladder used to climb down in the pit containing the machinery. Stamper
testified he currently performs the same job duties except for cleaning
evaporator tanks.
Stamper introduced the August 16,
2016, deposition of Lewis Reams (“Reams”), Okonite’s Assistant Plant Manager.
He testified he did not know who removed the guardrails on one side. He
testified the guardrails had been erected around the pit and were removed
during the installation of the equipment in the pit. The removal was necessary
in order to install the equipment and, to his knowledge, Okonite did not remove
the wooden railing on one side. Reams’ inquiry as to what occurred was limited
to a discussion with Okonite personnel. He was not part of Okonite’s
investigation team. Reams identified the machinery placed in the pit as
Capstone wheels. He testified Cumberland Machinery Movers (“Cumberland
Machinery”) installed the machinery and could not install the machinery with
the railing up. To his knowledge, Okonite employees were not present when the
railing was taken down and the machine installed. The concrete pit in which
Stamper fell was located in a new addition to the plant which Denham-Blythe was
constructing. Consequently, Denham-Blythe would have had personnel on site.
Reams testified either Cumberland Machinery or Denham-Blythe removed the
railing, and Cumberland Machinery or Denham-Blythe should have placed the
railing back. After Stamper fell, pursuant to Okonite’s direction,
Denham-Blythe erected railing where the tape had been.
Okonite introduced
the September 1, 2017, deposition of Jason Pierce (“Pierce”), its Human
Resource Manager. As Human Resource Manager, he dealt with the OSHA
representative after the accident.[1]
Okonite was cited and fined by KOSHA. On appeal, the fine was reduced. Pierce
testified he did not feel the citation and penalty were justified. He explained
the machine to be placed in the pit could not be installed with the barriers
around the pit. Even though KOSHA found the barriers were installed, he offered
the following testimony explaining why he felt the penalties were not
appropriate:
A:
There were some factors that were involved that we – basically, it was being –
the machine was being installed to put the barriers around the entire pit. It
would have been challenging. In fact, you wouldn’t have been able to install
the machine with the barriers all around. The barriers were initially
installed, and OSHA found that the barriers were initially installed, the
wooden barriers were installed, but they said it did not matter if you had
barriers before. It did not matter if you had anything up at the time. At the
end of the day, somebody got hurt in your facility and you should have done
more. We didn’t really agree with that, based on the circumstances of the
situation with the fact that those barriers had to come down to install the
physical equipment, and it was seen as a mitigating factor, the caution tape
was put up, and we felt like we did what we could, given the fact that we were
installing a machine.
Pierce testified Okonite did not take
down the barrier on one side of the pit and stretch caution tape across that
side. He explained that “at the time of the injury the building had not been
turned over to Okonite for production.”
Pierce testified
Cumberland Machinery installed the big wheels in the pit which are depicted in
various photographs introduced as an exhibit to his deposition and in Simpson’s
deposition.[2]
The mechanics had been sent to the building to attach a bar to both wheels.
Pierce testified he walked in the area where the pit was located all the time.
Pierce denied noticing the wooden barrier on one side was missing. He testified
Stamper fell on Wednesday, and Cumberland Machinery had taken down the two
wooden barriers the day before when it installed the machinery in the pit.
Pierce explained it was not his job to walk through to ensure the building was
safe. Further, he did not know who put up the barriers. He explained
“Denham-Blythe typically puts up any barriers out there in the facility when
they do their construction.” Denham-Blythe and Cumberland Machinery are third
party independent contractors.
Okonite introduced Simpson’s
September 1, 2017, deposition. Simpson testified he works in maintenance which
entails installation of and repairing equipment. On August 24, 2016, Simpson
was installing a new piece of equipment and Stamper was to assist him. Simpson
identified the equipment as being that shown in the photographs introduced
during Reams’ deposition. Simpson testified he did not know Stamper was present
until he fell. In fact, he did not see Stamper fall because he had his back to
Stamper working in the pit. Simpson estimated the pit was six to seven feet
deep. He used the ladder shown in the pictures to get in and out of the pit.
Stamper fell on top of him. Simpson testified there were wood railings around
three sides of the pit and the only side without railings had safety tape
extending across the entire side. Simpson explained why the tape was used:
Q: But
on the fourth side, there is – instead of the wooden railing there’s actually
that safety tape. Why is that the case?
A: The
reason why that’s there, put in, see, Cumberland Machinery Movers had to take
and set them big wheels in here and mount them on the gear box. To the height
the ceiling is, you couldn’t get a crane to raise it up high enough to set them
big wheels, so the front had to be removed to get them big wheels in there.
Q: And
to install those wheels and the work you were doing, could that have been done
effectively with that wooden barrier up?
A: You
couldn’t get them in there because you couldn’t get the height of the wheels
above that to get them in.
He testified the wooden barriers
located on all four sides were 42 inches high as required by OSHA. It was
easier for him to get on the ladder to go into the pit with the tape across the
one side instead of the wooden barriers. Simpson did not remove the wooden
barriers on one side and he did not know who did. The other mechanic working
with him did not remove the barrier. Simpson explained that Cumberland
Machinery, a third party contractor, placed the wheels upon which he was
working in the pit. The area where Stamper fell was located in a plant addition
being constructed by Denham-Blythe. Since the addition was under construction,
Okonite employees were only in the building when assigned a specific job.
Generally, only maintenance department personnel would have been in the
building. Simpson believed the wheels had been installed on August 23, 2016.
The pit in which the machinery was installed by Cumberland Machinery is
rectangular with the sides longer than the ends. When Simpson discovered the
barriers on one side had been taken down, he did not report it to Okonite.
He testified there
was electrical service in the addition; however, electrical work was ongoing.
As a result, temporary lights were strung in the area because there were no
light fixtures. Simpson acknowledged there were dark areas but the light
sufficiently permitted him to see what he was doing. He also believed there was
a skylight in the ceiling in the vicinity where he was working.
In determining a
safety violation had not been committed, the ALJ provided the following
findings of fact and conclusions of law:
Perhaps the most contentious issue in this
case is whether plaintiff's injury was caused by the defendant employer's
intentional violation of a safety statute or regulation. Plaintiff argues the
defendant was cited for violation of an OSHA regulation and that it also
violated the general duty to provide a workplace free from hazards set forth in
KRS 338.031(1)(a) and, as such, he is entitled to a 30% enhancement of his
income benefits per KRS 342.165.
After reviewing the testimony from both
the plaintiff and the lay witnesses, the Administrative Law Judge is persuaded
of several facts. First, the ALJ is persuaded that either Cumberland Machinery
Movers or Denham-Blythe removed the railing in question as part of Cumberland's
efforts to install the new machinery and that one of those entities installed
the yellow safety tape where the railing had been while the installation was
ongoing. The ALJ finds no evidence that any representative of the defendant
employer removed the railing or put up the yellow safety tape.
Next, it is
further determined that, regardless of who removed the railing, its removal was
necessary in order to install the new machinery. Again, the testimony appears
unanimous that the machinery with a large capstone wheels could not be
maneuvered over the existing railing given the limited height of the ceiling
over the pit. It was therefore necessary to remove the railing to install the
new machine.
The ALJ is also
persuaded that from the time Cumberland begin the installation of the new
machine and had to remove the railing, the area was primarily under its control
and or the control of the general contractor Denham-Blythe. The evidence is
less clear on this particular point, but it stands to reason that while the third-party
was in the process of installing this large piece of machinery in the pit area
with the use of its heavy equipment, it had primary control over the area.
However, it is
also determined that, regardless who had control over the pit area, installation
of another safety rail or reinstallation of the prior safety rail was not
likely feasible. The lay witnesses all seem to indicate that replacing the
safety railing would have presented additional hazards. While the railing was
removed, Wayne Simpson and others could walk to the edge of the pit and climbed
down a step ladder placed in position there. They acknowledged that, if a
safety rail had been in place at that time, they would have had to climb over
the railing and maneuver onto the latter [sic] from the inside of the railing
which could be hazardous. It is therefore determined that replacing the railing
was not feasible because the installation could not be completed and because it
may have presented another safety hazard in its own right.
For these reasons, it is determined
plaintiff has not carried his burden of proving that the defendant
intentionally violated a safety regulation because any safety violation which
may have occurred was caused by a third-party. Although [sic] directly on point
could be found, the ALJ does not believe negligence by a third-party can be
imputed to an employer for purposes of KRS 342.165. This would seem to be
reasonable because a third party’s negligence is rarely foreseeable.
It is also determined
the employer did not violate KRS 342.165 because there did not exist a readily
apparent, feasible means of preventing the injury. Accordingly, it is
determined plaintiff is not entitled to a 30% enhancement of income benefits
awarded.
Stamper filed a petition for
reconsideration asserting the ALJ had failed to provide essential findings of
fact and misstated some of the evidence. Stamper put forth the same argument he
makes on appeal.
Significantly, Stamper also contended
he was entitled to no less than the two multiplier, and he is presently not
performing all of the job duties he once did due to the effects of the work
injury. The ALJ denied the petition for reconsideration as a re-argument of the
merits.
On appeal, Stamper first argues he is entitled to additional multipliers
since he testified at the hearing he is longer cleaning an evaporator tank as
he cannot twist around and clean the machine. Stamper complains about the
following language within the ALJ’s opinion:
In addition, because plaintiff has
returned to the same job he previously held, even though he does not perform
all of the same duties in the same way as he did previously, and because he is
currently earning the same or greater wages, the administrative law judge is
persuaded plaintiff retains the physical ability to return to the job he held
at the time of his injury. As such, plaintiff is not entitled to any
multipliers under KRS 342.730(1)(c)(1). …
Stamper asserts even though he is still
working for Okonite, he is not performing every facet of his previous job, and
it is “unclear whether he will be able to continue to do so and for how long.”
At a minimum, Stamper contends he is entitled to the two multiplier.
Next,
Stamper
asserts the ALJ erred in not finding Okonite violated KRS 338.031(1)(a), which
requires the employer to furnish to each of its employees a place of employment
which is free from recognized hazards which are causing or likely to cause
death or serious physical injury or harm. Stamper does not set forth the
rationale behind that assertion. Rather, he asserts a violation of KRS
338.031(1)(a) can now constitute a violation of KRS 342.165.
Stamper asserts the application of
KRS 342.165(1) requires proof of two elements: a violation of a safety
provision, and intent to violate the safety provision. Stamper asserts the OSHA
report filed in evidence indicates Okonite was issued a citation for “violation
of 29 CFR 1910.23(c)(1), which states every open-sided floor or platform 4 feet
or more above adjacent floor or ground level was not guarded by a standard
railing on all open sides except where there was entrance to a ramp, stairway,
or fixed ladder.” Stamper contends this citation constitutes a prima facie showing of the existence of
a violation of a regulation. As such, he has met the first prong of the test.
Stamper asserts the second prong of intent has also been met as the intentional
violation may be inferred in this case. He maintains it is obvious even to a
layperson that employees working and operating in a dimly lit setting with only
skylights and temporary lighting around a pit at least 6 feet deep is extremely
dangerous. Stamper contends Pierce testified Okonite had failed to provide
alternate protection after the rail was taken down. Stamper posits the fact
Cumberland Machinery or Denham-Blythe removed the railing is of no import, as
Stamper was operating under the control of Okonite and on its property.
Further, he was instructed by an employee of Okonite to perform a job in the
area under construction, and but for those instructions he would not have been
in that location. Stamper asserts all are therefore responsible for his injury.
We agree the ALJ erred in finding the
two multiplier was not applicable, as there is no question Stamper returned to
work earning the same or greater wages. In fact, the ALJ found Stamper is
currently earning the same or greater wages; thus, the two multiplier is
applicable.
Further, we are puzzled by the ALJ’s statement
addressing the applicability of the three multiplier. The ALJ stated even
though Stamper had returned to the same job, he did not perform all of the same
duties in the same way as he did previously. The ALJ did not reference the
evidence which led him to draw the conclusion the three multiplier is not
applicable. If the ALJ believed Stamper could not perform the actual jobs he
performed when injured, Stamper is entitled to income benefits enhanced by the
three multiplier. This was clearly enunciated in Ford Motor Company v.
Forman, 142 S.W.3d 141, 145 (Ky. 2004).
When used in the context of an award that is based upon an
objectively determined functional impairment, “the type of work that the
employee performed at the time of injury” was most likely intended by the
legislature to refer to the actual jobs that the individual performed.
. . .
For that reason, proof of the claimant's present ability to
perform some jobs within the classification does not necessarily indicate that
she retains the physical capacity to perform the same type of work that she
performed at the time of injury. On remand, the ALJ must analyze the evidence
to determine what job(s) the claimant performed at the time of injury and to
determine from the lay and medical evidence whether she retains the physical
capacity to return to those jobs.
Because we do not understand whether
the ALJ found Stamper could not perform all of the same duties he was
performing at the time of the injury, we remand for further findings. If the
ALJ concludes Stamper was not capable of performing all of those duties, the
three multiplier is also applicable. If both multipliers are applicable then an
analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) is
necessary to determine whether enhancement by the two or three multiplier is
appropriate. Obviously, if the ALJ concludes Stamper is capable of performing
all of the same duties he was performing at the time of the injury, the three
multiplier is not applicable and a Fawbush analysis is not required.
As an initial matter, we note the ALJ
addressed whether KRS 342.165 applied and Stamper did not request additional
findings of fact in his petition for reconsideration regarding the applicability
of KRS 338.031(1)(a). Therefore, our review is limited to determining whether
substantial evidence supports the ALJ’s decision.
In
his findings of fact, the ALJ set forth the reasons for concluding enhancement
pursuant to KRS 342.165 was not required. First, the ALJ noted either
Cumberland Machinery or Denham-Blythe removed the railing in question and
strung the safety tape where the railing had been located, as there was no
evidence Okonite had removed the railing or put up the tape. Next, he concluded
regardless of which entity removed the railing, it had to be removed in order
to install the machinery, as there did not appear to be a dispute removal was
necessary in order for the Capstone wheels to be inserted in the pit. The ALJ
was persuaded that during the time Cumberland Machinery commenced installation
of the new machine and had to remove the railings, either Cumberland Machinery
or Denham-Blythe, both third parties, had control over the area where the pit
was located. More to the point, while Cumberland Machinery was installing the
machinery in the pit using “its heavy equipment it had primary control over the
area.”
The ALJ concluded installation of
another safety rail or reinstallation of a prior safety rail was not feasible.
The basis for the ALJ’s finding was all the witnesses indicated that replacing
the safety railing would have presented additional hazards. The ALJ believed
that to replace the safety rail and require employees to climb over it in order
to “maneuver onto the ladder” would be hazardous. Thus, the ALJ concluded
replacing the railing was not feasible as the installation could not be
completed and because another safety hazard would have been created. Finally,
the ALJ believed the negligence of a third party could not be imputed to
Okonite. The ALJ’s findings are in concert with the testimony of Simpson,
Pierce, and Reams, which constitutes substantial evidence in support of the
ALJ’s conclusion Okonite did not violate KRS 342.165(1).
The Supreme Court in Groce v. VanMeter Contracting, Inc., 539
S.W.3d 677 (Ky. 2018) addressed the same argument made by Stamper. In Groce,
the ALJ determined VanMeter had not violated KRS 342.165. This Board reversed
based upon a settlement agreement VanMeter entered into with KOSHA deeming it a
judicial admission that it had knowingly violated applicable safety
regulations. The Supreme Court agreed with the Court of Appeals which reversed
this Board. In doing so, the Supreme Court stated:
The Court of Appeals rejected the Board's analysis and we agree.
In construing the settlement agreement as a conclusive admission to a safety
violation, the Board totally disregarded a crucial element of the settlement
agreement: the explicit provision in which KOSHA and VanMeter disclaim its
effect as an admission to the alleged violation. This provision precludes the
use of the agreement as a conclusive judicial admission of a safety violation.
Were we to conclude otherwise, the settlement of KOSHA and other regulatory
processes would be greatly impeded as parties facing collateral litigation in a
different forum would have every incentive to resist settlement.
Even without the express admission-disclaimer language, an
agreement resolving the citations is not conclusive evidence in the workers'
compensation action. “[A]n adjudicative determination by an administrative
tribunal does not preclude relitigation in another tribunal of the same or a
related claim based on the same transaction if the scheme of remedies permits
assertion of the second claim notwithstanding the adjudication of the first
claim.” Berrier v. Bizer, 57 S.W.3d 271, 280 (Ky. 2001) (quoting Restatement (Second) of Judgments § 83(3) (A.L.I. 1982)); accord Board of Education of Covington v. Gray, 806 S.W.2d 400 (Ky. App. 1991). “[Restatement (Second) of Judgments § 83(3) Comment a] explains that the principle applies
whether the issue is claim preclusion (res judicata) or issue preclusion
(collateral estoppel).” Berrier, 57 S.W.3d at 280–81. The Board's reliance upon the settlement agreement as a
substitute for evidence proving the violation was error.
Id.
at 682-683.
The Supreme Court also addressed the
ALJ’s determination, based on the evidence, VanMeter did not violate a safety
regulation:
Finally, although KOSHA's citations and investigative report,
and the terms of the settlement agreement may be considered as some evidence of
the alleged regulatory violations, it remains for the ALJ in the workers'
compensation action to determine whether, as a matter of fact, the violations
occurred and, if so, whether they were intentional and a contributing cause of
the injury-producing accident. “The fact that the employer settled the KOSHA
citation without admitting a violation is immaterial. In the context of a
workers' compensation claim, it is the responsibility of the ALJ to determine
whether a violation of a statute or administrative regulation has occurred.” Brusman v. Newport Steel Corp., 17 S.W.3d 514, 520 (Ky. 2000).
In this instance, the ALJ did not merely conclude that Groce had
failed to meet her evidentiary burden of proving that VanMeter violated 29 CFR
1926.703(a)(1) by failing to use the required push-pull pipe bracing and by
failing to properly space the anchor bolts on the concrete forms; rather, the
ALJ found from the evidence that VanMeter had used push-pull pipe
bracing and had spaced its bolts within four-foot intervals. Thus, the
ALJ affirmatively found that these alleged violations did not occur. Groce directs
us to no evidence that
compels a finding in opposition to the ALJ's determination.
The ALJ also expressly rejected the safety deficiencies
identified by Groce's co-worker, Steve Nelson, relating to the anchor bolt
spacing and the use of tie-downs. The ALJ found that Nelson, while an
experienced laborer in building concrete structures, was not qualified to give
an opinion establishing safety requirements. The ALJ also found that Groce had
failed to establish VanMeter's violation of the general safety duty of KRS 338.031(1)(a) under the standards provided in Lexington–Fayette Urban County Government v. Offutt, 11 S.W.3d 598 (Ky. App. 2000). Specifically, Groce failed
to identify any violation of a prescribed industry-accepted method for pouring
forms or anchoring them to footers. [footnote omitted]
It is fundamental that the Board “shall not substitute its
judgment for that of the administrative law judge as to the weight of evidence
on questions of fact.” KRS 342.285(2). The ALJ “has the sole discretion to determine the
quality, character, and substance of the evidence, and may reject any testimony
and believe or disbelieve various parts of the evidence ....” Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329 (Ky. App. 2000) (internal edits and
quotations removed) (citations omitted).
Id.
at 683-684.
Here, as in Groce, the ALJ
methodically examined the evidence supporting Stamper’s allegation and was not
convinced Okonite violated a safety regulation. Because the ALJ’s findings are
supported by the largely uncontradicted testimony of Simpson, Pierce, and
Reams, which constitutes substantial evidence, we must affirm. Moreover, the
evidence does not overwhelmingly compel a reversal of the ALJ’s findings.
Accordingly, that portion of the ALJ’s November 17, 2017, Opinion,
Order, and Award and the January 19, 2018, Order overruling the petition for
reconsideration relating to the ALJ’s finding Okonite did not commit a safety
violation justifying enhancement of Stamper’s benefits by 30% pursuant to KRS 342.165
is AFFIRMED. However, the award of
PPD benefits without enhancement by the multipliers set forth in KRS
342.730(1)(c) is VACATED. This claim
is REMANDED to the ALJ for entry of
an amended opinion and award further addressing whether the three multiplier is
applicable in accordance with the views expressed herein. If the ALJ concludes
the three multiplier is applicable, then an analysis pursuant to Fawbush
is required and the appropriate multiplier determined. If the ALJ finds the
three multiplier is not applicable, Stamper is entitled to enhanced benefits
during any period of cessation of that employment at the same or greater wages
for any reason, with or without cause, except where Stamper’s conduct resulting
in the cessation is shown to have been due to “an intentional, deliberate
action with reckless disregard of the consequences either to himself or
another.” Livingood v. Transfreight, LLC, 467 S.W.3d 249, 259 (Ky.
2015).
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
COUNSEL
FOR RESPONDENT:
HON BRIAN GANNON
1315 HERR LN STE 210
LOUISVILLE KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
657 CHAMBERLIN AVE
FRANKFORT KY 40601
