Workers’
Compensation Board
OPINION
ENTERED: July 31, 2015
CLAIM NO. 201187090
BRAKE PARTS PETITIONER
VS. APPEAL FROM HON. JANE RICE
WILLIAMS,
ADMINISTRATIVE LAW JUDGE
THERESA MIDDLETON and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Brake
Parts Inc. (“Brake Parts”) appeals from the Opinion on Remand rendered March
31, 2015 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”) awarding
Theresa Middleton (“Middleton”) temporary total disability (“TTD”) benefits,
permanent partial disability (“PPD”) benefits, and medical benefits for
work-related injuries sustained as a result of a fall from a manlift on May 6,
2011. On remand, the ALJ again determined
Middleton was entitled to the thirty percent enhancement pursuant to KRS
342.165(1). Brake Parts also seeks
review of the May 1, 2015 order denying its petition for reconsideration.
The sole issue on appeal is
whether the ALJ erred in assessing a safety penalty against Brake Parts
pursuant to KRS 342.165(1). Therefore,
the majority of the medical evidence will not be discussed since it is not
relevant to this appeal. Because
substantial evidence supports the ALJ’s determination of the applicability of
KRS 342.165(1), we affirm.
Middleton filed a Form
101 alleging multiple injuries when she stepped backward and fell approximately
four feet off of a manlift while stacking parts. This Board previously summarized the relevant
facts of this claim in its January 30, 2015 Opinion Vacating in Part and Remanding,
stating as follows:
Middleton testified by
deposition on March 8, 2013, and at the hearing held June 13, 2014. Middleton began working for Brake Parts in
2001 initially packaging finished brakes.
She was later transferred to the lab which involved inspecting
parts. She was subsequently transferred
to the lean cell department which involved the manufacture of brake parts. She was initially a leader in that
department, then became a machine operator.
After two to three years in the lean cell department, Middleton was
transferred to the logo room where the names or logos for different companies
were affixed to the parts. On the day of
the accident, Middleton had been detailed away from her usual job to the bulk,
or storage area, where she had only worked on a few previous occasions. The storage area is where the parts and
supplies necessary for the manufacturing process were stored and dispensed.
On the date of the accident,
Middleton was using a manlift to stack parts on a shelf. She stated she had operated the lift a few
times prior to the accident, and had received very little training. On the first day she worked in the bulk area
she was shown the key to the manlift, how to charge the battery, where
everything plugged in, and how to use the joystick. At the time of the accident, she had stacked
some supplies on a shelf, and was returning to ground level. As the lift was descending, it stopped. She believed she was at ground level and
stepped backward. Unbeknownst to her at
the time, she estimated the lift was still four to five feet from ground level,
and she fell backward onto the concrete floor.
She stated she was not using a safety harness or belt, and had never
been instructed to do so. She also
stated no such equipment was available.
. . . .
Jeff Martin (“Martin”), the
Environmental Health and Safety Engineer for Brake Parts, testified by
deposition on September 18, 2013. Martin
has a bachelor’s degree in Industrial Technology from Morehead State
University. Martin personally
investigated the accident, and reviewed the scene of the accident. At the time of the accident, Middleton was
operating a JLG lift, also known as a personal manlift or personal order
selector. He stated a harness is not
required unless working above the six foot level. He estimated the platform was three to three
and a half feet above floor level when Middleton fell. He stated there were no witnesses to the
fall. Martin was unaware of any actual
training Middleton received except for what she testified to in her
deposition. He stated despite JLG’s
requirement for the use of a lanyard, noted in the operator’s manual, the use
of a fall restraint system was not used on the machine because it was not
required by OSHA. He noted there were no
training videos for the use of the machine at the time Middleton was
injured. He stated there was no OSHA
investigation of the accident, and no citations were issued.
James Randolph Gray
(“Gray”), president and owner of Grayhawk Safety and Consulting from Benton,
Kentucky, testified by deposition on December 4, 2013. Gray holds a bachelor’s degree from Murray
State University in occupational safety and health. Gray worked as an inspector for OSHA for
twenty-five years, retiring in December 2008.
He occasionally conducts OSHA training nationwide.
Based upon his review, Gray
stated Brake Parts breached its statutory duty to provide adequate
training. He stated no records exist
evidencing Middleton received the training necessary to operate the equipment. He stated the initial training must be
provided by someone who is competent in understanding the equipment. Upon completion of the training, the employer
is required to provide an operator card.
He also stated there is no evidence Brake Parts complied with a
maintenance program.
According to Gray, Middleton
should have been wearing fall protection when working. While fall protection is
required while working at or above six feet in a construction setting, in an
industrial setting it is required when working at a height of greater than four
feet pursuant to 29 CFR 1910.178. He also noted the manufacturer required the
use of a lanyard as stated in the operator’s manual. He opined the use of a lanyard would have
prevented Middleton’s fall.
Gray also noted the JLG
machine did not have an interlock system which would have prevented the opening
of the door until the platform reached the floor. He stated Brake Parts breached its duty to
conduct inspections. He stated Brake Parts
violated the general duty clause for not providing a safety lanyard, and specifically
violated 19 CFR 1910.178 for failing to comply with the instructions in the
operator’s manual.
In the opinion rendered August 8,
2014, the ALJ awarded TTD benefits, PPD benefits enhanced by the three
multiplier, and medical benefits. The ALJ
stated as follows in finding Brake Parts committed a safety violation, and in
enhancing the award by 30 percent pursuant to KRS 342.165(1):
1. Principle
of law.
The goal of KRS 342.165(1) is to promote workplace
safety by encouraging workers and employers to follow safety rules and
regulations. Apex Mining v. Blankenship,
918 S.W.2d 225, 228 (Ky. 1996). The
relevant portion of the statute provides:
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.
Application of the safety penalty requires the
claimant to prove two elements: (1)
evidence of the existence of a violation of a specific safety provision,
whether state or federal; and (2) evidence of “intent” to violate a specific
safety provision. Cabinet for Workforce Development v. Cummins, 950 S.W.2d 834 (Ky.
1997). Intent to violate a regulation,
however, can be inferred from an employer’s failure to comply because employers
are presumed to know what state and federal regulations require. See Chaney
v. Dags Branch Coal Co., 244 S.W.3d 95, 101 (Ky. 2008).
KRS 338.031(1)(a), commonly known as Kentucky’s
“general duty” provision, requires every employer to provide a workplace that
is “free from recognized hazards that are causing or are likely to cause death
or serious physical harm.” Even a
general duty violation that results in a worker’s accident and injury may be
sufficient to fall under KRS 342.165(1).
See Apex Mining v. Blankenship,
supra.
2. Findings of fact and conclusions of law.
Middleton is entitled to 30% enhancement of benefits
pursuant to KRS 342.165(1) as the employer failed to provide a workplace free
from recognized hazard. Middleton has also proven intent to violate on the part
of the employer.
3. Evidentiary basis and analysis.
Brake Parts is required to provide a workplace free
from recognized hazards. 29 CRF outlines
the duty to provide training and the requirement of operating under direct
supervision until training is completed.
The formal instruction, practical training and evaluation, all must be
conducted by a qualified person. The
training should be documented, certification completed and the equipment
inspected on a regular basis. Furthermore, fall protection should have been
provided. None of this was done, as
Middleton testified. Although Martin,
the safety director for the company, testified Middleton would have received
safety training as evidenced by logs of such training, no logs were ever
produced. Martin did not believe a
training program was required.
In the absence of proof of training, Middleton’s
testimony is the most believable. She
had not been properly trained on safe operation of the equipment as was
required by the owner’s manual and the federal code. Randy Gray, Plaintiff’s expert, testified
concerning the federal and state requirements to provide training on such a
lift, requirements appearing to be fairly obvious even to a lay person.
The element of intent of noncompliance is inferred
from Defendant Employer’s failure to keep logs and to document training. Documented safety training is a somewhat easy
preventative solution for employers in order to avoid the enhancement of
benefits under the statute.
Defendant Employer’s analogy to Apex, supra, arguing the failure to provide a lanyard was not an
obvious unsafe condition is rejected and its argument of no OSHA violation is
disingenuous as there was no OSHA inspection.
None was required since Middleton was not hospitalized overnight.
Reviewing of [sic] the cases cited by Defendant
Employer, the main argument is that in order to prove a violation of the
general duty clause, intentional disregard for a safety hazard must be
shown. It is the opinion herein that
failure to provide training and to maintain documentation thereof demonstrates
an intentional disregard for safety.
After reviewing the statutory and case
law regarding the application of the safety penalty, this Board vacated in part
and remanded for additional findings in its January 30, 2015 opinion, stating
as follows:
Here, the ALJ’s
finding of a safety violation, and assessment of a safety penalty is
confusing. In her decision, the ALJ
clearly found Brake Parts had committed a safety violation, but the analysis
blends elements of both a specific infraction of the safety regulations, and a
violation of the general duty clause contained in KRS 338.031. On remand, the ALJ is directed to more
clearly set forth the basis for her findings on this issue. We note evidence exists which may well
support the finding of a safety violation, and the assessment of a
penalty. However, the ALJ must clearly
provide the basis for doing so.
In the March
31, 2015 Opinion on Remand, the ALJ provided the identical “Principle of law”
and “Findings of fact and conclusions of law” language contained in the
original opinion. Under her “Evidentiary
basis and analysis,” the ALJ reiterated much of her previous analysis, and made
additional findings stating as follows:
Plaintiff further supports this position in
pointing out the general duties statute requires an employer to provide its employees a
place to work free from recognized hazards that can cause death or serious
injury. (KRS 338.031; Hornback v.
Hardin Mem’l Hosp., 411 S.W.3d 220, 222 (Ky. 2013).
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) the cited Employer or
Employer’s industry recognize the hazard; (3) the hazard was likely to cause
death or serious physical harm; and (4) a physical 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 & Health Review
Commission, 60 F. 3d 1207, 1209 (6th Cir. 1995).
Randy Gray expressed his professional opinion that Defendant Employer
failed to comply with its statutory duty to provide a safe and healthful
workplace for its employees.
Specifically, in part, Gray found:
1.
Defendant breached its duty to provide training to Ms. Middleton prior
to assigning her to operate a JLG MODEL 10MSP lift. According to 29 CFR 1910.178(I)(1)(i) “The
employer shall ensure that each powered truck operator is competent to operate
a powered industrial truck safely, as demonstrated by the successful completion
of the training and evaluation specified in this paragraph (I).
Gray went on to state that the regulations require the employer to
ensure that each operator has successfully completed the training program. Paragraph 1.2 of the JLG Model operator’s
manual states that the Operator is to have read and understood the manual and
be trained by an authorized trainer.
2. The
Defendant breached its duty to provide a training program to Ms. Middleton
prior to assigning her to operate at JLG MODEL 10MSP lift in the Logo
room.
3. The
Defendant breached its duty to provide fall protection to Ms. Middleton. The operator’s manual provided by the
manufacturer required the operator to use a fall restraint system while in the
platform attached to a maximum 30” lanyard while attached to an authorized
anchor point. Ms. Middleton never had a
safety harness of any type.
Gray outlined the violations in his report and found [sic] Defendant
Employer complied with the operator’s manual and required the use of the
lanyard, the injuries to Middleton would not have occurred.
Jeff Martin, Defendant Employer’s safety director, did not believe the
operator’s manual requirement of a 30” lanyard was required stating OSHA does
not require it.
Gray clarified the OSHA requirement.
In the construction industry, Gray stated, any time an employee leaves
the ground at 6 feet and higher, he is required to be tied off. However, in a factory setting, it is at 4
feet. (See also, 29 CFR
1910.178.) Mr. Gray went on to state
that if it is a requirement of the manufacturer of the lift to use a 30 inch
lanyard, then OSHA regulations require that the employer utilize a
lanyard. Thus, it was not correct
regarding use of the lanyard on the industrial lift. Defendant Employers’ own safety engineer
mistakenly believed that a lanyard was not required in this instance, when in
fact a lanyard was required and would have prevented the injuries to Middleton.
Plaintiff’s position is fully supported on all elements of the
violation of the general duty clause.
The test for the violation of the general duty clause requires the
following:
(1) A condition or activity
in the workplace presented a hazard to Employees.
The failure to provide a lanyard meant an individual was utilizing a
lift, placing them greater than 4 feet off the ground, presenting a hazard to
the employees. As Gray noted, an
Employer has a duty to be aware of the dangers, specifically as set forth in
the operating manual to a piece of equipment.
(2) The cited Employer or
Employer’s industry recognized the hazard.
Gray clarified the OSHA requirements for factory settings. In a factory setting, a lanyard is required
if an individual is working on a platform higher than 4 feet and if the
manufacture requires the use of a lanyard.
Thus, the OSHA regulations recognize such hazard, as does the
manufacturer. Defendant Employer knew
the lanyard was required per the owner’s manual but chose to ignore the
requirement.
(3) The hazard was likely to
cause death or serious physical harm.
Since this industrial lift was utilized for purposes of storing
inventory at heights of 8 to 10 feet, it is patently obvious that the failure
to use the fall protection could cause death or serious physical harm.
(4) A feasible means existed
to eliminate or materially reduce the hazard.
The fix was relatively minor.
All it took was the use of a 30” lanyard.
The Employer intentionally disregarded this safety hazard that was
likely to cause serious physical harm.
The Employer had actual knowledge of the manufacturer’s requirement for
the use of a lanyard, but ignored or disregarded that requirement.
The evidence reveals that Defendant Employer had actual knowledge of
the requirement of the use of the lanyard and understood the consequences, yet
nothing was done to comply with the manufacturer’s required use of a lanyard.
Plaintiff is entitled to the enhancement for a safety violation per KRS
342.165(1).
In denying Brake Parts’
petition for reconsideration, the ALJ provided the following additional
findings:
A. That the Defendant/Employer breached a
specific duty in failing to provide a training program and to provide training
to Ms. Middleton prior to assigning her the job of operating a JLG MODEL 10MSP
lift. The Defendant breached 29 CFR
1910178(l)1(i) “the Employer shall insure that each power truck operator is
competent to operate a power industrial truck safety, as demonstrated by the
successful completion of the training and evaluation specified in this
paragraph (1).”
B. In
addition, the ALJ finds that the Defendant/Employer violated the general duties
clause by failing to provide the Plaintiff with fall protection as required by
the operator’s manual for the JLG MODEL 10MSP lift. The operator’s manual specifically required
the operator to use a fall restraint system while in the platform attached to a
maximum 30 inch lanyard while attached to an authorized anchor point. Ms. Middleton never had a safety harness of
any type.
C. The ALJ
specifically reviewed the 4 prong general duty clause requirement at Pages 29
and 30 of the Opinion on Remand.
D. Plaintiff is entitled to an enhancement for a
safety violation per KRS 342.165(1).
E. The
Opinion on Remand dated March 31, 2015 is amended to include the additional
findings set forth above. All other
terms and conditions set forth in the Opinion on Remand remain as set forth
therein.
On appeal, Brake Parts again
challenges the ALJ’s imposition of the safety violation based upon its alleged
violation of the general duty clause pursuant to KRS 338.031 and specific
federal regulations.
As the claimant in a
workers’ compensation proceeding, Middleton had the burden of proving each of
the essential elements of her cause of action. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Since Middleton was
successful in her burden, the question on appeal is whether substantial evidence existed
in the record supporting the ALJ’s decision.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Substantial
evidence” is defined as evidence of relevant consequence having the fitness to
induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co.,
474 S.W.2d 367 (Ky. 1971).
As fact-finder, the ALJ has the sole authority to determine the
weight, credibility and substance of the evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ may reject any testimony
and believe or disbelieve various parts of the evidence, regardless of whether
it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88
(Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708
S.W.2d 641 (Ky. 1986).
KRS 342.165(1), states as follows:
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.
The
purpose of KRS 342.165 is to reduce the frequency of industrial accidents by
penalizing those who intentionally fail to comply with known safety
regulations. See Apex Mining v.
Blankenship, 918 S.W.2d 225 (Ky. 1996).
The burden is on the claimant to demonstrate an employer’s intentional
violation of a safety statute or regulation. Cabinet for Workforce
Development v. Cummins, 950 S.W.2d 834 (Ky. 1997). On the other hand, as a general rule workers’
compensation acts are no fault. The purpose of workers’ compensation is to pay
benefits to an injured worker without regard to negligence on the part of
either the employer or the employee. See
Grimes v. Goodlet and Adams, 345 S.W.2d 47 (Ky. 1961).
The
application of the safety penalty requires proof of two elements. Apex
Mining v. Blankenship, supra.
First, the record must contain evidence of the existence of a violation
of a specific safety provision, whether state or federal. Secondly, evidence of “intent” to violate a specific
safety provision must also be present.
Enhanced benefits do not automatically flow from a showing of a
violation of a specific safety regulation followed by a compensable injury. Burton
v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). The worker also has the burden to demonstrate
the employer intentionally failed to comply with a specific statute or lawful
regulation. Intent to violate a
regulation, however, can be inferred from an employer’s failure to comply
because employers are presumed to know what state and federal regulations
require. See Chaney v. Dags Branch
Coal Co., 244 S.W.3d 95, 101 (Ky. 2008).
Violation
of the “general duty” clause set out in KRS 338.031(1)(a) may well constitute
grounds for assessment of a safety penalty in the absence of a specific
regulation or statute addressing the matter. Apex Mining v. Blankenship,
supra; Brusman v. Newport Steel Corp., 17 S.W.3d 514 (Ky. 2000).
KRS 338.031(1)(a) requires the employer “to furnish to each of his employees
employment and a place of employment which are free from recognized hazards
that are causing or likely to cause death or serious physical harm” to
employees. Two cases containing court
discussion of the violation of KRS 338.031(1)(a) for the purposes of KRS
342.165(1) are outlined below.
In
Apex Mining v. Blankenship, supra, the injured worker was
required to operate a grossly defective piece of heavy equipment which had its
throttle wired open. The brakes failed
to work, causing prior accidents. The Court
found the egregious behavior of the employer justified imposition of the safety
penalty in the absence of a specific statute or regulation.
However,
in Cabinet for Workforce Development v. Cummins, supra, the Court
stated not every violation of KRS 338.031(1)(a) required the imposition of a
penalty for the purposes of KRS 342.165.
The claimant’s work site as a teacher of refrigeration, air
conditioning, and heating at an adult vocational school was not properly
ventilated. The Court agreed with the
Board that the employer’s action was not an obvious and egregious violation of
basic safety concepts such as would overcome the general language of KRS
338.031. The Court distinguished the facts from Apex
Mining, noting the potentially dangerous condition of the piece of heavy
equipment and the fact the employer had taken no steps to correct it.
The
facts in Apex Mining illustrate one end of a
continuum of employer conduct that ranges from egregious to the other end of
the continuum illustrated in Cummins where the employer’s conduct is
innocuous.
On
remand, the Board directed the ALJ to clarify her analysis in assessing a
safety penalty, noting she blended elements of both a specific infraction of
the safety regulations and violation of the general duty clause contained in
KRS 338.031. After reviewing the Opinion
on Remand and Order denying Brake Parts’ petition for reconsideration, we find
the ALJ sufficiently remedied the original opinion, and because substantial
evidence supports her assessment of the safety penalty, we affirm.
The
ALJ clearly found Brake Parts violated both specific regulations contained in
the Code of Federal Regulations (“CFR”) pertaining to training, as well the
general duty clause pursuant to KRS 338.031.
In support of her determination, the ALJ found the testimony of
Middleton and Randy Gray
(“Gray”), as well as his November 22, 2013 investigative report, and
the operator’s manual most persuasive.
We
will first address the ALJ’s finding of a safety violation based upon a
specific statute or regulation. In the
May 1, 2015 Order on Petition for Reconsideration, the ALJ found Brake Parts
violated 29 CFR 1910.178(l)(1)(i) which requires the Employer to ensure each
operator “is competent to operate a powered industrial truck safely, as
demonstrated by the successful completion of the training and evaluation
specified in this paragraph (l).”
The
testimony and report of Gray, in addition to the testimony of Middleton,
support the finding of the first element, i.e., the existence of a violation of
a specific safety provision. As noted by
the ALJ, Middleton testified she received limited training the first day. In his November 22, 2013 investigative
report, Gray concluded Brake Parts, “breached its duty to provide training to
Ms. Middleton prior to assigning her to operate a JLG Model 10MSP lift” as
required in 29 CFR 1910.178(l)(1)(i) and (ii).
Gray also found Brake Parts violated other training provisions contained
in 29 CFR 1910.178. Gray testified
Middleton was “totally unqualified” to be an operator of the lift given her
limited training.
In
addition, the JLG Operation and Safety Manual (“operator’s manual”) was filed
by Brake Parts during the pendency of this claim. Section 1.2 requires an operator to read and
understand the manual, and to be trained by authorized persons. Section 2.1 outlines what the training must
cover, and includes use of the controls and safety systems; control labels,
instructions and warnings on the machine; rules of the employer and government
regulation; use of approved fall protection device; knowledge of sufficient
mechanical operation to recognize potential malfunction; the safest means to
operate when obstacles are present; means to avoid the hazards of unprotected
electrical conductors; and specific job requirements. The ALJ acted well within her discretion in
relying upon the testimony of Gray and Middleton, and on the operator’s manual
and Gray’s report, rather than the testimony of Jeff Martin (“Martin”), in finding Brake Parts violated a specific federal
regulations concerning training.
As
noted above, Middleton bore the burden of proving Brake Parts intentionally
failed to comply with the specific statute or lawful regulation. Intent to violate a regulation, however, can
be inferred from an employer’s failure to comply because employers are presumed
to know what state and federal regulations require. See Chaney v. Dags Branch Coal Co., 244 S.W.3d at 101. In this instance, after finding Brake Parts
breached its statutory duty to provide adequate training, the ALJ addressed the
element of intent which was inferred from Brake Parts’ failure to keep logs and
to document training. We find no error
in the ALJ’s inference of intent in light of the holding contained in Chaney
v. Dags Branch Coal Co., supra.
Because
the ALJ performed the appropriate analysis in the opinion on remand and order
on petition for reconsideration in finding a safety violation based upon a
specific regulation or statute, and substantial evidence supports her findings,
her determination will not be disturbed on appeal.
Although the ALJ could have ended her
analysis after finding Brake Parts had intentionally violated a specific
statute or regulation, she additionally found it had violated the general duty
clause contained in KRS 338.031 by failing to provide Middleton with fall
protection as required by the operator’s manual for the JGL MODEL 10 MSP
lift.
Gray’s testimony and report constitute
substantial evidence supporting of the ALJ’s finding of a violation of the
general duty clause. The operator’s
manual states, “JLG Industries, Inc. requires that the operator utilize a fall
restraint system in the platform with a maximum 30 inch (76 cm) lanyard
attached to an authorized lanyard anchorage point.” It is uncontroverted at the time of the
accident no such lanyard was in place.
Gray testified Middleton should have been wearing fall protection
when working. Gray explained while fall
protection is required while working at or above six feet in a construction
setting, however, in an industrial setting, it is required when working at a
height of greater than four feet pursuant to 29 CFR 1910.178. Gray also cited
to the operator’s manual, which requires the use of a lanyard. Gray opined the use of a lanyard would have
prevented Middleton’s fall. Gray also
testified the OSHA standards require an employer to follow the instructions
provided by the manufacturer, and in this instance, OSHA regulations required Brake Parts to
utilize a lanyard as instructed in the operator’s manual.
In
the opinion on remand, the ALJ engaged in the four part test used in Lexington-Fayette
Urban County Government v. Offutt, 11 S.W.3d 598, 599-600 (Ky. App. 2000),
to determine whether there had been a violation of KRS 338.031: a condition or
activity in the workplace presented a hazard to employees; the cited employer
or employer’s industry recognized the hazard; the hazard was likely to cause
death or serious physical harm; and a feasible means existed to eliminate or
materially reduce the hazard. The ALJ
addressed each element, finding in favor of a violation KRS 338.031 for
each. Substantial evidence, in the form
of the operator’s manual, Gray’s testimony and report, and Middleton’s
testimony, supports the ALJ’s findings under each element.
The
ALJ additionally found an intentional violation of the general duty clause because
Brake Parts had acknowledged the manufacturer’s requirement a lanyard be used
while operating the lift as stated in the operator’s manual, which it either
ignored or disregarded. Although Brake
Parts presented evidence from Martin that no fall protection was required, the
ALJ choose to rely instead upon contrary evidence. The ALJ acted within her authority as
fact-finder, and her ultimate determination of the applicability of a safety
violation will not be disturbed. Magic
Coal Co. v. Fox, supra; Whittaker v. Rowland, supra.
The opinion
on remand and the order on Brake Parts’ petition for reconsideration adequately
addressed the concerns raised by this Board in its January 30, 2015 opinion
vacating and remanding, and preformed the appropriate analyses in support of
the application of the safety penalty pursuant to KRS 342.165(1).
Therefore,
the March 31, 2015 Opinion on Remand and May 1,
2015 order denying Brake Parts’ petition for reconsideration by Hon. Jane Rice
Williams, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON JAMES O FENWICK
PO BOX 34048
LEXINGTON, KY 40588
COUNSEL
FOR RESPONDENT:
HON MARK D KNIGHT
PO BOX 49
SOMERSET, KY 42502
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601