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OPINION ENTERED: April 17, 2009
CLAIM NO. 06-92092
DAVID MORRIS JR. (DECEASED)
STELLA MAE MORRIS, ADMINISTRATOR PETITIONER
VS. APPEAL FROM HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE
H&D MINING
and HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDE RESPONDENTS
REVERSING IN PART
AND REMANDING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Stella Mae Morris, Administrator of the estate (“the estate”) of David Sherman Morris, Jr., deceased (“Morris”) seeks review of a decision rendered August 8, 2008 by Hon. J. Landon Overfield, Administrative Law Judge (“ALJ”), denying the estate’s claim for a 30% increase in death and survivors’ benefits pursuant to KRS 342.165(1) against H&D Mining, Inc. (“H&D”). No petition for reconsideration was filed by either party prior to the estate’s appeal to this Board.
KRS 342.165(1) provides in relevant part:
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.
On December 30, 2005, while working in H&D’s underground coal mine, Morris was struck from behind by the bucket of a coal hauler, in effect severing both legs at or below the knees. It is undisputed that the actual collision producing Morris’s injuries did not involve the failure of H&D to comply with a specific safety statute or regulation. What is at issue is: 1) the total lack of medical assistance following the collision provided by Gary Wayne Bentley (“Bentley”), the mine emergency technician (“MET”) and owner/operator of H&D; and 2) the deficiency in first aid training afforded by H&D to James Couch (“Couch”), the section foreman, who unsuccessfully attempted to care for Morris in the minutes following the collision.
Morris ultimately died due to blood loss. The certificate of death lists the immediate causes of Morris’s demise as: 1) “Exsanguination;” and 2) “Blunt Force Injuries of Lower Extremities.” Morris was twenty-nine years old at the time of the accident and is survived by his widow and two minor children.
Couch testified under oath on December 31, 2005. Couch stated that immediately following the injury, he could see that one of Morris’s legs was completely amputated and the other one was hanging “by a little bit of flesh” off to the side. Couch immediately sent H&D employee Eural Allen (“Allen”) to bring Bentley, the MET, to the scene, and instructed him to return with a “mantrip” to transport Morris to the mouth of the underground coal mine. Couch testified:
I hollered for help. Eural Allen come around the car and Brandon Hatfield comes from his scoop. I seen [sic] Eural Allen find Gary Bentley, which was the MET, and the ride to get him outside. I went to the first-aid box, got what I could to help him. That’s all I knowed [sic] to do for him. I got him a ride and got him outside as fast as possible. It looked like he had a better chance outside.
Couch testified he tied one bandage around each leg and tied off both legs above the knee. He and some other employees then loaded Morris onto the buggy retrieved by Allen and instructed Tim Shackleford (“Shackleford”), a roof bolter operator, to call outside and request an ambulance. Couch testified that Bentley arrived as he and the other employees were loading Morris into the mantrip. According to Couch, Bentley, in his capacity as MET, provided no assistance. Couch testified:
Q. So when you put - - so when you put the bandages on, he wasn’t bleeding very much?
A. No, he wasn’t bleeding real bad.
Q. So when you put the bandages on, did it stop it?
A. He wasn’t there but a few seconds after that. As soon as I tied him on, I put him on the mantrip and sent him outside because I didn’t know what else to do, because I figured he had a better chance with the ambulance outside.
Q. Okay. Now, Gary Bentley, your MET, after you got - - when you got - - put the bandages around him, when did he arrive? You said he came - -
A. He showed up. He got there about the time we was loading him on the buggy.
Q. About the time you was loading him on the buggy. Did he look at the victim or did he - - what did he say?
A. No.
Q. Did he put any additional - -
A. No, he never done nothing new. David [Logan, a repairman] was already fixing to head out with him.
Q. But did he - - did he check the vic - -
A. No.
Q. Did he check David?
A. No.
Q. He didn’t check?
A. No.
Couch stated that to reach the section where he and his men were working underground required a twenty minute mantrip ride from the mouth of the mine. Couch testified that Bentley remained underground another thirty minutes after Morris had been transported outside. Couch stated that he and the rest of his crew did not leave the section for another forty-five minutes. Couch admitted that although he was a foreman at the mine, he had never been provided with select supervisor first aid training.
Shawn Rogers (“Rogers”), a roof bolter operator, testified under oath that he, Shackleford, and Brandon Hatfield (“Hatfield”), a scoop operator, rode with Morris to the mouth of the mine, where they waited twenty-five minutes for the ambulance. When the ambulance failed to arrive and Morris’s heartbeat became faint, the men loaded Morris into the back of a truck for transport to the hospital. According to Rogers, they met the ambulance while traveling down “the hill” from the mine.
Shackleford testified under oath that he, Rogers and Bentley arrived at the scene of the collision together. Shackleford stated that Couch was tying on bandages when he arrived. At Couch’s instruction, Shackleford then called for an ambulance. He, Rogers and Hatfield then rode outside with Morris. According to Shackleford, upon reaching the mouth of the mine, Rogers attempted to tie off Morris’s legs for a second time using a piece of rope. Shackleford stated that Morris was still talking when they reached the outside. Shackleford testified Morris died while the men were transporting him in a truck “off the hill” from the mine, after waiting twenty to thirty minutes for the ambulance to arrive.
Emmitt Ferguson (“Ferguson”), a roof bolter operator, testified under oath that Bentley arrived on the scene after Couch had applied tourniquets to both of Morris’s legs. According to Ferguson:
Q. And then Gary got there?
A. Right then Gary got there.
Q. When the - - when they had both tourniquets on.
A. After both tourniquets are on.
Q. Then what happened? You said Gary did something.
A. Gary turned and run to the back of the ramcar, and then he - - before he took off, he said, boys, get him on a ride, get him out of here. He run to the back of the ramcar. And when he come back, he was saying, I got to find me a ride. And after we done got him on the ride and got him headed out, he kind of walked off.
Q. Who walked off?
A. Me, Tim. And the boss come down to the corner where we was sitting. I had been there it might have been ten minutes. I don’t know. But I stood there for a minute. And then Gary - - James come down, I thought it was kind of odd. I said, James, who’s the MET? He said, Gary. I thought he was the MET because he was the one that was tying him off and everything.
. . . .
Q. Okay. Hatfield said he would go. So when Bentley got down there, he comes up to the - - did he ever come to where - -
A. He never touched him.
Q. He never touched him. All he said was, get him on a trip?
A. Get him on a trip and get him out of there.
Q. Did he examine him at all, get up and look at him?
A. He come up to the corner where he could see him real good, and that’s as far as the man went.
. . . .
Q. And then you said he took off to the back of the ramcar.
A. Again.
Q. Again. What do you mean?
A. He went back to the end of the ramcar twice.
Q. What was he doing?
A. I don’t know if he was sick or what. . . .
Ferguson testified it was his understanding that after Morris was loaded and the mantrip left the area, Bentley walked from the face out of the mine.
Timothy Turner, a scoop operator, testified under oath that when the section crew arrived outside following the incident, Bentley was present and Morris had already been transported from the mine.
Tracy Stumbo (“Stumbo”), the chief accident investigator for the Kentucky Office of Safety and Licensing (“OMSL”), testified by deposition taken May 20, 2008. Stumbo testified that in the past, prior to entering the employ of OMSL as a mine safety analyst, he had worked thirteen years in the mining industry, five years of which was spent as a mine foreman. Stumbo also testified he had been previously certified as both an MET and emergency medical technician (“EMT”), though his certifications were no longer current.
Stumbo verified that following Morris’s death, he jointly investigated the fatality in conjunction with the Federal Mine Safety and Health Administration (“MSHA”). Stumbo confirmed that, by stated law, underground coal mines are required to have at least one MET on site during operations. Stumbo stated that METs are first emergency responders, certified by the state. Stumbo testified that METs must undergo forty hours of training in CPR and patient care.
Stumbo stated that on July 14, 2006, a complaint was filed individually against Bentley pursuant to 803 KAR 8:010 by Jennifer Cable Smock and C. Michael Haines, General Counsel for the OMSL, seeking disciplinary action for Bentley’s failure to respond in his capacity as an MET to Morris’s injuries on December 30, 2005. The complaint alleged that Bentley, by failing to administer treatment at the time of the accident, violated 805 KAR 7:080 § 11.
805 KAR 7:080 § 11 provides as follows:
Section 11. Denial, Revocation and Suspension of MET Certification.
(1) The Mining Board may revoke, suspend, or probate the MET certification or MET instructor certification of a person who the board determines, based upon allegations substantiated by the department, has responded or acted inappropriately in his capacity as a mine emergency technician or MET instructor by failing to:
(a) Follow appropriate standard of care in the management of a patient;
(b) Administer treatment in a responsible manner in accordance with his level of certification;
(c) Maintain patient confidentiality;
(d) Timely respond to an emergency.
(2) All actions taken by the board regarding the revocation, suspension, or probation of a MET certification or MET instructor certification shall be so taken in accordance with KRS 352.390.
By agreement entered into in February 2008, Bentley agreed to permanent revocation of his MET certification and “to a permanent bar to license a mine within the Commonwealth of Kentucky.” Bentley further agreed that from the date of the settlement forward, he would relinquish all rights to “be a mine owner or operator in the mining industry in the Commonwealth.”
Stumbo testified that on the date of Morris’s death, H&D met the state regulatory requirement of having a certified MET at the mine site through Bentley. Stumbo testified, however, that at the time of the accident Bentley: 1) failed to take charge; 2) failed to follow appropriate standards of care; and 3) failed to administer treatment in a responsible manner in accordance with his position as MET, all in violation of 805 KAR 7:080 § 11. Stumbo specifically noted that Bentley did not act to apply or insure that proper tourniquets were in place, a procedure for which he would have had training as an MET. Stumbo further stated that Morris’s legs should have been elevated to assist in slowing bleeding, and he should have been covered with a blanket to help prevent shock. Specifically, Stumbo testified:
And we’ve had a lot of these in the mines. People bleeding to death because they are so far underground, and it takes so long to get them out and actually get them to a hospital, when, you know, just a very simple procedure sometimes can save their life.
. . . .
First of all, they probably should have controlled the bleeding. They could have transported him on a stretcher. They could have elevated his legs. He could have actually assigned two (2) other people to actually hold pressure on each leg, even above where the tourniquet was. And I actually think that two other people tried to do that that were not even METS.
Finally, Stumbo testified that following Morris’s death, state investigators concluded Bentley initially gave false testimony in an attempt to impede the investigation.
The United States Department of Labor MSHA completed a report of investigation concerning the circumstances surrounding Morris’s death dated March 6, 2006. The report listed the principal officers for H&D as:
James H. Hurley…………………President
Randell H. Fleming…………Secretary
Gary W. Bentley…………………Treasurer
Jerry V. Gilliam………………Safety Consultant
The federal investigator concluded the December 30, 2005 accident occurred because the available equipment and procedures for operating the coal haulage system did not ensure that mobile equipment had clear visibility at the section loading point. The report further concluded that complications to Morris’s recovery existed “because proper first aid was not given to the victim prior to moving him to the surface and transferring him to the ambulance.” The federal investigator further reported in relevant part:
Morris received near amputating injuries of both lower extremities. His left leg was severed 17 inches above the heel. His right leg suffered severe crushing injuries at the back of the knee.
Brandon Hatfield, scoop operator, was located in the cross cut opposite the off-standard shuttle car when he saw the coal hauler strike Morris from behind and fall into the coal hauler bucket. Section Forman Couch was the first person to offer to assist Morris. H&D had designated Couch as a select supervisor to receive ten hours of first aid training. However, H&D never provided Couch with the initial select supervisor first aid training or the select supervisor first aid re-training. Therefore, Couch began providing assistance to Morris the best way he knew how. Couch instructed Hatfield to summon help. He also instructed Allen to call outside for help and to travel to the No. 2 entry and locate mine owner, Gary Bentley, Mine Emergency Technician (MET). Couch was in the process of applying cravat bandages above the victim’s knees when Bentley arrived. No medical assessment was made concerning the extent of Morris’ injuries. Bentley simply instructed Couch to place Morris in a mantrip and take him outside. Bentley then turned and walked toward the other end of the Coal Hauler. Couch finished applying the cravat bandages. No other first aid measures were provided. Bentley returned and instructed Couch to place Morris on a mantrip and ‘get him out of here.’ Couch, Hatfield, Tim Shackleford and Shawn Rogers placed Morris in the mantrip and traveled to the surface. Morris was not placed on a backboard. He was not covered to prevent shock. His extremities were not elevated and no other measures were used to stop the bleeding.
Bentley following in another Mantrip and was delayed because his mantrip shut down due to low battery power. He began walking out until he met with another mantrip to catch a ride out.
After the miners got Morris to the surface, they waited for the ambulance for 30-35 minutes. While they waited Morris continued to bleed. Therefore the miners applied two pieces of rope to each leg above the knee. Again, no dressings were applied to the injury. Morris’ extremities were not elevated. No pressure points were utilized. No tourniquets were applied to stop the bleeding.
Hatfield checked Morris and could not detect vital signs. He also checked Morris’s eyes and found the pupils dilated. A decision was made to place Morris in the bed of a pickup truck and transport him immediately to the nearest hospital. A short distance from the mine, the miners met the ambulance. Morris was transferred to the care of Life Care Ambulance paramedics, who transported him to the Appalachian Regional Hospital in Harlan, Kentucky, arriving at 12:03 p.m. He was pronounced dead at 12:20 p.m.
. . . .
On an interview with the paramedic that first treated Morris, the paramedic stated, that ‘basic first-aid in control of bleeding prior to my arrival would have resulted in a very different outcome.’ The attending emergency room doctor at the Appalachian Regional Hospital also indicated that the results ‘absolutely’ would have been different had bleeding been controlled during the period before transferring the victim to the ambulance service.
The report emphasized that “[t]he mine operator did not ensure the section foreman, as the select supervisor, was properly trained to perform first-aid.” The report concluded that complications to Morris’s recovery arose “because proper first aid was not given to the victim prior to moving him to the surface and transferring him to the ambulance.” Consequently, at the close of the MSHA investigation, the federal investigator cited H&D for violation of 30 CFR § 75.1713-3 due to Couch’s lack of select supervisor first aid training.
30 CFR § 75.1717-3 provides as follows:
The mine operator shall conduct first-aid training courses for selected supervisory employees at the mine. Within 60 days after the selection of a new supervisory employee to be so trained, the mine operator shall certify by signature and date the name of the employee and date on which the employee satisfactorily completed the first-aid training course. The certification shall be kept at the mine and made available on request to an authorized representative of the Secretary.
The Kentucky Department for Natural Resources OMSL also completed a report of investigation dated March 20, 2006, concerning the circumstances surrounding Morris’s death. The state investigators described the events that occurred after the collision on December 30, 2005, in relevant part, as follows:
Couch tied a triangular bandage around each of Morris’ legs above the knee to control bleeding. Within minutes, other crewmembers arrived at the accident scene. A battery-powered personnel carrier was brought to the accident scene and Morris was placed in the carrier. Gary Bentley, MET arrived at the scene as Morris was being placed into the carrier, but elected not to check or treat the patient. Morris was placed in the carrier sitting in an upright position leaning back against Hatfield. Shawn Rogers drove the personnel carrier to the surface and Shackleford also went with them.
While Morris was being transported, his legs began to bleed again. Hatfield and Shackleford attempted to tighten the triangular bandages to control bleeding. When the personnel carrier arrived on the mine surface, the ambulance had not arrived. Hatfield and Shackleford tied (a piece of nylon rope around both of Morris’ legs) in an attempt to control the bleeding. After waiting for the ambulance for approximately 20 minutes, Hatfield and Shackleford decided that Morris needed to be transported to a medical facility immediately. Morris was placed in the back of a pick-up truck and transported from the mine site.
Bentley and the other crewmembers also came outside. Bentley drove the truck, while Hatfield and Shackleford rode in the back with Morris. As the group arrived at the end of the mine access road near highway No. 179, the ambulance arrived. Morris was moved from the truck and placed in the ambulance.
Morris was pronounced dead at 12:20 PM, at Harlan ARH by Amir Ahmed. Morris died from the loss of blood due to blunt force injuries to his lower extremities.
The OMSL investigators concluded that “[a]ppropriate first aid was not rendered to the victim.” No citations, however, were issued due to H&D’s failure to comply with any specific statute or lawful administrative regulation.
With the above evidence available to him, the ALJ determined H&D committed a safety violation pursuant to 30 CFR § 75.1713-3, because of its failure to properly train Couch in first aid as a select supervisor. That finding notwithstanding, the ALJ nonetheless denied the estate’s demand that all compensation due Morris’s survivors under KRS 342.750(1)(b) and (6) be increased by 30%, pursuant to KRS 342.165(1). The ALJ concluded the estate failed in its burden to prove “to the satisfaction of the trier of fact” that H&D’s violation of 30 CFR § 75.1713-3 “in any degree caused Plaintiff’s death.” In so ruling, the ALJ, in relevant part, reasoned as follows:
Tragedy came in waves to cause this fatality. The occurrence of the initial impact may have been preventable. Perhaps better emergency medical care could have been rendered to David’s severed limbs. The location of the tragedy made both medically safe and timely transportation of a severely injured miner to the surface non-attainable. The timeliness of the arrival of the ambulance and the MET who performed the first treatment on David, even on paper, seems to have been extraordinarily protracted.
. . . .
Plaintiff argues that Bentley’s failure to act appropriately amounts to a safety violation. The requirement cited is that mine operations have an MET in the mine. There is no dispute that Defendant Employer had an MET, Bentley, in the mine at the time of David’s accident. Having such personnel in place is no assurance that that personnel will respond appropriately to an emergency situation. However, this failure to respond appropriately cannot be guaranteed by statutory or regulatory provision. In this instance, the regulation was met by the fact that . . . a properly trained MET was on duty.
There is no dispute that Defendant Employer violated the regulations set forth in 30 CFR § 75.1713-3. Couch was the selected supervisor to receive the first aid training and Defendant Employer had not provided that training. Defendant Employer argues that the violation of this regulation is not necessarily the violation of a ‘safety regulation’ and that the violation, if proven, did not cause ‘in any degree’ the accident which befell David.
Without going into great detail concerning the legislative/regulatory intent of 30 CFR § 75.1713-3, the ALJ is convinced that such regulations are intended to promote safety in mining operations and to prevent escalation of the injurious effects of an accident by means of proper emergency medical treatment. The ALJ is convinced that the regulation in question was a safety regulation and the Defendant Employer violated that regulation.
Did Defendant Employer’s violation of the regulation cause, in any degree, the accident which befell David? Certainly, the violation of the regulation had nothing to do with the coal hauler striking David and severing his lower extremities. However, Plaintiff poses a serious question concerning whether or not the violation of the safety regulation escalated David’s injury from a serious and probably debilitating injury to a fatality. This Administrative Law Judge is convinced this is a question which must be answered with proper medical evidence. From his years in scouting and practicing personal injury and workers compensation law, the ALJ knows what he thinks about the treatment rendered. However, he has no idea, from a medical perspective, whether or not proper treatment would have prevented the fatality. Unfortunately, there is no competent medical evidence in the record which would give a basis for answering that question.
The MSHA report stated that . . . the investigator was told by an unidentified EMT and an unidentified emergency room physician that proper emergency treatment would have resulted in a very different outcome. This information is hearsay. In an administrative proceeding such as this, the ALJ is both the gatekeeper of the evidence and the trier of fact. As the gatekeeper, the ALJ can allow admission of such statement into evidence. However, such incompetent evidence alone will not support a finding of fact. [Citation omitted.] There is no competent evidence from a medical expert, based on a reasonable degree of medical probability, that Couch having not received the proper training and his resulting inappropriate response to David’s injury resulted in David’s death.
Nothing in our culture receives more or is entitled to more sympathy than a young widow and young children who have lost their husband and father at a young age in a tragic accident. Unfortunately the ALJ’s decision must be pragmatic rather than sympathetic.
On appeal, the estate argues there is “no question” but that Morris’s death was caused in some degree by his employer’s violation of 805 KAR 7:080 § 11 and 30 CFR § 75.1713-3, and it was error for the ALJ to rule otherwise. While we generally agree the ALJ in part committed reversible error, we base our opinion on different grounds.
KRS 342.0011(1) defines “injury” as “any work-related traumatic event or series of traumatic events . . . arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings.” Though not at issue in this appeal, corresponding to KRS 342.0011(1) the term “accident” as used throughout the Act has been interpreted by the Kentucky Supreme Court to be synonymous with the phrase “work-related traumatic event” —or in this instance a “series of traumatic events” — resulting in a harmful change to an employee, regardless of the actual nature or degree of the harmful change. See Trico County Development & Pipeline v. Smith, ___ S.W.3d ___, 2008 WL 5272773 (Ky. 2008);1 Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564, 566 (Ky.2001); see also Wilson v. Anthem Companies, Inc., 2003-SC-0738-WC, 2004 WL 2128666 (Ky. 2004).2 It stands to reason, therefore, that for purposes of KRS Chapter 342, “accident” generally includes not only the immediate work-related event that sets into motion a harmful change, but all subsequent work-related events flowing from the preliminary occurrence that directly or tangentially, separately or in concert, are proximate causes resulting in the acceleration, augmentation or escalation of that harmful change. For that reason, we are in accord with the ALJ
that KRS 342.165(1) applies to the intentional failure by an employer to comply with any specific safety statute or administrative regulation, whether designed to avert the occurrence of a traumatic event altogether or to prevent intensification of the detrimental consequences of an initial traumatic event “by means of proper emergency medical treatment.”
We also agree with the ALJ’s ruling that KRS 342.165(1) has no application with reference to Bentley’s failure to fulfill his duties as the MET, in violation of 805 KAR 7:080 § 11, at the time of the accident. H&D, the corporation, was Morris’s employer on December 30, 2006, not Bentley. Smith v. Isaacs, 777 S.W.2d 912 (Ky. 1989). Bentley, in his capacity as MET, was also an employee of the corporation. The fact that in addition to being the MET for H&D, Bentley was also an owner, officer, or shareholder of the corporation, or was working as a supervisor, is not sufficient for purposes of KRS 342.165(1) to invoke the 30% increase in compensation against H&D.
The financial consequences imposed by KRS 342.165(1) are triggered only where it is shown that “the employer” has intentionally failed to comply with a specific safety statute or regulation, thus engendering an unsafe work environment and contributing in whole or in part to the occurrence of a work-related traumatic event. AIG/AIU Ins. Co. v. South Akers Mining Co., LLC, 192 S.W.3d 687 (Ky. 2006); Apex Mining v. Blankenship, 918 S.W.2d 225 (Ky.1996); Ernst Simpson Construction Co. v. Conn, 625 S.W.2d 850, 851 (Ky.1981). By contrast, a solitary unanticipated action or inaction by a co-worker, even a supervisor, operating in his or her capacity as an employee, that produces a transitory safety peril is not necessarily imputed to an employer under KRS 342.165(1), unless subject to the employer’s direction or ascribed knowledge acquiescing to the creation of the safety hazard.
In this instance, Stumbo, the chief accident investigator for the OMSL, testified that in accordance with Kentucky law, H&D was required to have at least one MET certified by the state on site underground during operations. See KRS 351.127(1) and (2).3 Stumbo confirmed that on December 30, 2005, H&D was in compliance with that statutory mandate. Id. It is unrefuted that at the time the traumatic events of December 30, 2006 transpired, Bentley was current in his training, was nearby and was available for a quick response. Hence, H&D received no citation concerning its MET obligations.
By contrast, the fact that Bentley was unwilling or unable to function in his capacity as MET on December 30, 2005 resulted in disciplinary proceedings brought against him individually by the OMSL. Bentley was charged with having violated his responsibilities as a certified MET pursuant to 805 KAR 7:080 § 11, because he failed to independently react to Morris’s injuries and insure the administration of proper emergency treatment. Even a cursory reading of 805 KAR 7:080 § 11 confirms that provision is intended as a regulatory vehicle for denying, revoking or suspending MET certifications for personnel who do not, or cannot, comply in providing an appropriate standard of medical care. The penalties imposed by 805 KAR 7:080 § 11 are specific to the individual MET, and do not extend to the employer for whom the MET works. Hence, for purposes of 805 KAR 7:080 § 11, Bentley’s nonfeasance was not only unforeseeable, but solely attributable to him personally, and consequently, insufficient to invoke liability against H&D under KRS 342.165(1).
We likewise find no error concerning the ALJ’s rejection of the various statements attributed by federal investigators to the unidentified paramedic and emergency room physician that proper first aid and better control of Morris’s bleeding prior to the arrival of the ambulance would have “absolutely” resulted in “a very different outcome.” As pointed out by the ALJ, such statements constitute hearsay which is otherwise generally incompetent for evidentiary purposes. See KRE 801(c); KRE 802. While we note the MSHA report containing the statements was filed into record without objection and therefore could have been relied upon by the ALJ (a failure to object even to hearsay essentially renders the matter waived), he was not obligated to do so. Perkins v. Stewart, 788 S.W.2d 48 (Ky.App. 1990); Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973); Cornett v. Fordson Coal Co., 236 Ky. 209, 32 S.W.2d 984 (Ky. App. 1930). As trier of fact, the ALJ is the gatekeeper and arbiter of the evidence both procedurally and substantively. Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d 283 (Ky. 2006). Moreover, the ALJ has the sole authority to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). The ALJ as fact finder 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 v. Fox, 19 S.W.3d 88 (Ky. 2000). Accordingly, the ALJ was free to consider or disallow such evidence as he deemed appropriate. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
That having been said, we nonetheless reverse. Contrary to the ALJ’s decision, the standard concerning the application of KRS 342.165(1) is not a medical question. What is more, the ALJ held the estate to a higher standard than that otherwise required by KRS 342.165(1).
The outcome in this case did not hinge on Morris’s death, or whether Morris eventually died as a result of Couch’s lack of training. Rather, the correct standard is whether the work-related traumatic events of December 30, 2005 were caused “in any degree” by the intentional failure of H&D to comply with 30 CFR § 75.1713-3. As the Supreme Court explained in Chaney v. Dags Branch Coal Co., 244 S.W.3d 95, 101 (Ky. 2008):
KRS 342.165(1) does not require an employer’s conduct to be egregious or malicious. Absent unusual circumstances such as those found in Gibbs Automatic Moulding Co. v. Bullock, 438 S.W.2d 793 (Ky. 1969), an employer is presumed to know what specific state and federal statutes and regulations concerning workplace safety require. Thus, its intent is inferred from the failure to comply with a specific statute or regulation. If the violation “in any degree” causes a work-related accident, KRS 342.165(1) applies.
Hence, while there must be substantial evidence in order to support an increase in compensation under KRS 342.165(1), that evidence need only be slight to facilitate a shift in the burden of persuasion to the employer thus requiring some explanation of its actions or lack thereof. In this instance, the record contains no such explanation or countervailing evidence.
The question that should have been addressed by the ALJ, therefore, was whether Couch’s lack of mandatory first aid training as a select supervisor/section foreman contributed whatsoever to the measure of harmful change suffered by Morris on December 30, 2005. Even absent the hearsay declarations of the unidentified paramedic and emergency room physician included in the federal MSHA report of investigation, we believe the remaining evidence of record compels an answer to that question in the affirmative.
The ALJ determined H&D committed a safety violation pursuant to 30 CFR § 75.1713-3. That ruling is uncontested. Although Couch was a section foreman at the mine, he had never been provided with select supervisor first aid training. More importantly, the nature and severity of Morris’s injuries on December 30, 2005, and the fact that he was bleeding profusely, were plainly apparent to Couch and the other employees of H&D present at the scene. The law is clear that where a wound was obvious or a victim exhibited immediate bleeding, lay witnesses are qualified to offer opinion evidence concerning the extent and progression of the physical changes displayed and the suffering endured by the victim. See KRE 701; Zogg v. O'Bryan, 314 Ky. 821, 237 S.W.2d 511 (1951).
The evidence confirms that immediately following amputation of Morris’s lower legs, Couch responded by providing assistance “the best way he knew how.” He attempted to use triangle bandages as tourniquets by tying them off above Morris’s knees. No other first aid measures were provided and no further medical assessment was made concerning the extent of Morris’s injuries. Morris was then set in an upright position in a mantrip. He was not covered to prevent shock. His legs were not elevated and no other measures were used to stop the bleeding.
According to Couch, his involvement in the traumatic events that occurred underground ended there. Neither he nor Bentley rode with Morris out of the mine. Instead, two roof bolter operators and a scoop operator, equally untrained in first aid, were charged with that task.
While Morris was being transported, his legs began to bleed again. Hatfield and Shackleford unsuccessfully attempted to tighten the triangular bandages. When the mantrip carrying Morris arrived at the mouth of the mine, Hatfield and Shackleford attempted to tie two pieces of nylon rope around both of Morris’s legs in a further unsuccessful attempt to control the bleeding.
Stumbo, the mine safety analyst and an expert witness with past training in first aid, testified the men on the scene could have better controlled Morris’s bleeding. According to Stumbo, Morris should have been placed on a stretcher with his legs elevated and covered with a blanket. Additionally, the men who rode with him to the surface should have been instructed to properly apply pressure to each leg above the bandages. Inherent in Stumbo’s testimony is the reality that, in large part, because Couch lacked the appropriate first aid training mandated for section foremen by federal regulation, none of these measures were implemented.
These uncontradicted facts notwithstanding, we in no way intend disparagement of the men present at the mine the day Morris was injured, nor do we question their motivations. The circumstances they experienced were akin to combat. At best, we can only project ourselves into their situation and speculate about our own faculties. All the same, their untrained response on December 30, 2005 to Morris’s harmful change radically serves to underscore H&D’s violation of 30 CFR § 75.1713-3. The fact that Bentley seized up when confronted by the emergency only accentuates the policy at the core of the federal regulatory scheme that more than one employee of an underground mine be trained in first aid. By not providing Couch with that training, H&D stripped Morris of a significant degree of protection mandated for employees performing hazardous duty in a dangerous environment. In proportion to the standard enunciated in KRS 342.165(1), the estate was entitled to have its claim judged based on the reasonable “possibility” of Morris’s rescue. By contrast, the ALJ, in determining the application of KRS 342.165(1) erroneously applied a higher standard based on the “probability” of Morris’s survival. By failing to comply with 30 CFR § 75.1713-3, H&D in large measure destroyed for Morris any possibility of rescue. H&D is, therefore, liable for the 30% increase in compensation under KRS 342.165(1) as a matter of law.
Accordingly, the decision rendered August 8, 2008 by Hon. J. Landon Overfield, Administrative Law Judge, is hereby REVERSED IN PART and REMANDED for further proceedings consistent with this opinion.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON TONY OPPEGARD
PO BOX 2246
LEXINGTON KY 40522
COUNSEL FOR RESPONDENT:
HON KAMP T PURDY
300 E MAIN ST STE 400
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE:
HON J LANDON OVERFIELD
110 NORTH WATER ST
HENDERSON KY 42420
1 Slip opinion at p. 3.
2 Slip opinion at p. 3.
3 Compare: 30 C.F.R. § 75.1713 and 30 C.F.R. §§ 75.1713-3 though 75.1713-7.
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