Opinion
NO. 2013-CA-000933-WC
02-28-2014
ALICIA HOWETH-ENGLAND APPELLANT v. DEPARTMENT OF CORRECTIONS; DR. RAFAEL PRIETO, MD; HON. ALLISON E. JONES, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Rick A. Johnson Paducah, Kentucky Rodger W. Lofton Paducah, Kentucky BRIEF FOR APPELLEE: K. Lance Lucas Sarah C. Rogers Florence, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-78249
OPINION
AFFIRMING
BEFORE: CAPERTON, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Alicia Howeth-England appeals a decision of the Workers' Compensation Board denying her a safety violation penalty.
Howeth-England was employed by the Department of Corrections (DOC) as a corrections officer at the Western Kentucky Correctional Complex (WKCC). On August 29, 2010, Howeth-England was walking through a prison dormitory when she stubbed her toe on a metal plate in the floor, causing her to fall and resulting in a back injury.
Following the injury, Howeth-England received temporary total disability (TTD) benefits. She had two lumbar hemilaminotomy surgeries at L5-S1. She never returned to work. Howeth-England claimed she was physically unable to return to her prior employment and unable to perform any full time work due to back pain and spasms in her lower back and left leg.
At the disability hearing, Howeth-England testified the area where the metal plate was located was "kind of dark" and she was not aware of the plate until after she fell. She testified the metal plate was about twenty inches square.
James Purdy, a safety specialist at WKCC, testified by deposition that the metal plate was raised a quarter to three-eighths of an inch above floor level and was a brownish color, a shade darker than the floor. Purdy testified there were no previous reported injuries or documented complaints about the metal plate. Following Howeth-England's injury, Purdy ground down the corners of the plate and painted it yellow to prevent further accidents.
On November 19, 2012, the Administrative Law Judge (ALJ) awarded Howeth-England TTD benefits and partial permanent disability (PPD) benefits for 20% whole person impairment. The ALJ found the metal plate constituted a safety violation and, therefore, awarded Howeth-England a 30% increase in PPD benefits pursuant to KRS 342.165(1). The ALJ also determined Howeth-England was opioid dependent and the DOC should pay for a fourteen week physician-supervised detoxification program.
The DOC and Howeth-England filed cross petitions for reconsideration. The DOC requested additional findings of fact on the issue of the safety penalty and challenged the application of the penalty to this situation. On December 17, 2012, the ALJ affirmed its previous opinion, determined its previous findings were sufficient, but also amended its order to make additional findings:
Defendant Employer relies on the fact that no one had previously complained about or been injured by the plate in the floor. The ALJ finds that this fact is not sufficient to avoid liability for a safety violation penalty. An employer should not be able to avoid taking corrective measure to ensure the safety of its employees until one of its employees sustains an injury. Moreover, the ALJ does not believe that an employer should be permitted to remain "willfully blind" to obvious hazards that its employees might encounter in the workplace.
While certain hazards might not be easily ascertainable, and therefore, not sufficient to give rise to a finding of an intentional violation, the ALJ found that this case presented the type of safety violation that even a layperson could easily recognize. In other words, it is common sense that an unmarked, raised plate in a dim walkway poses a tripping hazard.
In Howeth-England's petition for reconsideration, she requested an increase in her TTD benefits for the safety violation and an award of TTD during any period of detoxification. The ALJ granted her the increase in TTD benefits based on the safety violation but denied her an additional period of TTD benefits.
The DOC appealed the ALJ's inclusion of the 30% safety violation increase in benefits to the Board. The Board determined substantial evidence did not support the ALJ's imposition of the safety violation penalty:
Here, the record indicates [DOC] could not have known the metal plate posed any kind of a safety hazard before August 29, 2010. To permit the factual scenario in the case sub judice to justify a safety penalty would broaden the application of the statute to include factual situations not contemplated by the Supreme Court and the legislature.
Howeth-England appealed, claiming the Board erred as a matter of law by substituting its judgment for that of the ALJ's as to the weight of evidence on a question of fact.
Pursuant to KRS 342.285, the ALJ as the fact finder has the "sole discretion to determine the quality, character, and substance of evidence." James T. English Trucking v. Beeler, 375 S.W.3d 67, 69-70 (Ky. 2012). The ALJ may believe some evidence and disbelieve other evidence and may adopt any reasonable inference from the evidence even if a contrary inference could also be made. Carnes v. Parton Bros. Contracting, Inc., 171 S.W.3d 60, 66-67 (Ky.App. 2005). Where a workers' compensation claimant is successful before the ALJ, the Board must affirm if there is substantial evidence to support the ALJ's conclusions. Id. at 68.
The Board or the appellate courts can correct an error in the ALJ's decision if the decision was erroneous as a matter of law. James T. English Trucking, 375 S.W.3d at 70. "Legal errors would include whether the ALJ misapplied Chapter 342 to the facts; made a clearly erroneous finding of fact; rendered an arbitrary or capricious decision; or committed an abuse of discretion." Id.
In reviewing the Board's decision, we will only correct the Board if it overlooked or misconstrued controlling statutes or precedent, committed a flagrant error in assessing the evidence which caused gross injustice or substituted its judgment for that of the ALJ concerning factual findings. AK Steel Corp. v. Childers, 167 S.W.3d 672, 675 (Ky.App. 2005); Carnes, 171 S.W.3d at 66-67.
KRS 342.165(1) provides an increase in workers' compensation benefits if the employee's accident was caused by the employer's intentional failure to comply with safety statute or regulation:
If an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been liable under this chapter shall be increased thirty percent (30%) in the amount of each payment.It is the claimant's burden to prove the employer's intentional violation of a specific safety statute contributed to the claimant's injury. Cabinet for Workforce Dev. v. Cummins, 950 S.W.2d 834, 837 (Ky. 1997).
The benefit enhancement provided in KRS 342.165(1) can be triggered by a violation of KRS 338.031, also known as the "general duties" provision of Kentucky's Occupational Safety and Health Act, which states that an employer must provide his employees a place to workHornback v. Hardin Mem'l Hosp., 411 S.W.3d 220, 222 (Ky. 2013).
free from recognized hazards that could cause death or serious injury.
An employer is determined to have violated KRS 338.031 when:
(1) [a] condition or activity in the workplace presented a hazard to employees; (2) [t]he cited employer or employer's industry recognized the hazard; (3) [t]he hazard was likely to cause death or serious physical harm; and (4) [a] feasible means existed to eliminate or materially reduce the hazard.Lexington-Fayette Urban Cnty. Gov't v. Offutt, 11 S.W.3d 598, 599 (Ky.App. 2000)(quoting Nelson Tree Services, Inc. v. Occupational Safety and Health Review Commission, 60 F.3d 1207, 1209 (6th Cir. 1995)).
"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." Hornback, 411 S.W.3d at 226. See Apex Min. v. Blankenship, 918 S.W.2d 225, 229 (Ky. 1996) ("There was substantial evidence that the employer was aware of the defective condition of the grader, and it is apparent, even to the lay person, that a piece of heavy equipment without brakes, with a decelerator that is not in proper condition, and with a throttle which is fastened in the wide open position creates a safety hazard."); Brusman v. Newport Steel Corp., 17 S.W.3d 514, 520 (Ky. 2000) (actual knowledge of obvious hazard caused by railroad cars with bowed sides shown where complaints about such cars had been raised at a safety meeting and employer knew workers routinely rode railway cars).
As a matter of law, there was no substantial evidence presented to support the finding that failure to remove, mitigate or mark the metal plate in the floor presented a safety hazard which the DOC intentionally disregarded. There was no evidence the DOC was aware of the hazard posed by the metal plate where no one had previously been injured or complained about the plate. Additionally, it was not the type of hazard which by its nature is obvious.
The plate was also unlikely to cause death or serious injury. The risk of someone tripping on the plate was unlikely, tripping would not necessarily result in a fall, and once a fall occurred it would be unlikely to cause death or serious injury. While Howeth-England did suffer a serious injury from tripping on the plate and falling, in general, falling onto a level surface is unlikely to cause this result. It is a similar type of hazard to those commonly encountered in daily life and unlike the type of risks that have resulted in imposition of the safety penalty, such as the risk of falling down an elevator shaft, requiring running in hazardously high heat, or being injured by a known defective grader or bowed train. See Hornback, 411 S.W.3d at 225-226; Offutt, 11 S.W.3d at 600; Apex Min., 918 S.W.2d at 227 (Ky. 1996); Brusman, 17 S.W.3d at 520. Therefore, the Board was correct to reverse the safety penalty award as a matter of law.
Accordingly, we affirm the opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Rick A. Johnson
Paducah, Kentucky
Rodger W. Lofton
Paducah, Kentucky
BRIEF FOR APPELLEE: K. Lance Lucas
Sarah C. Rogers
Florence, Kentucky