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Workers’
Compensation Board
OPINION
ENTERED: May 6, 2016
CLAIM NO. 201267588
JAMIE GROCE PETITIONER
VS. APPEAL FROM HON. DOUGLAS
W. GOTT,
ADMINISTRATIVE LAW JUDGE
VANMETER CONTRACTING, INC.
and HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
IN PART, VACATING IN PART,
AND
REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Jamie Groce (“Groce”) seeks review of the November 30, 2015, Opinion, Award,
and Order of Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”) finding her
totally occupationally disabled as a result of multiple injuries sustained in a
fall occurring on October 8, 2012, at Vanmeter Contracting, Inc.’s (“Vanmeter”)
job site in Glasgow, Barren County, Kentucky.
Groce also appeals from the January 4, 2016, Order denying her petition
for reconsideration. On appeal, Groce
challenges the ALJ’s failure to enhance her income benefits by 30% pursuant to
KRS 342.165(1).
Sometime prior to Groce’s work-related
fall, Scotty’s Contracting and Stone, LLC (“Scotty’s”) had secured a contract
with the Kentucky Transportation Cabinet to erect a bridge and install a
retaining wall on a new portion of Ky. Hwy. 90/Burkesville Road, in Glasgow, Barren
County, Kentucky. Scotty’s, in turn,
contracted with Vanmeter to erect the bridge and retaining wall. At the time of Groce’s injury, the bridge had
been erected and Vanmeter was in the process of erecting a portion of the
retaining wall required by the contract.
Documents of the Kentucky Labor Cabinet, Office of Occupational Safety
& Health (“KOSHA”) reflect the primary contractor was Kentucky
Transportation Cabinet, District 3.
Scotty’s was listed as a subcontractor with “Type of Construction” shown
as general contracting. Vanmeter was
also listed as a subcontractor and the “Type of Construction” was “[h]eavy
concrete and bridge construction.”
Present at the job site on October 8,
2012, were Vanmeter’s employees, Groce, Steve Nelson (“Nelson”), Kenneth Decker
(“Decker”), John McIntosh (“McIntosh”), Brian Lindsey (“Lindsey”), and Linden
Lipe (“Lipe”). Also present was a
concrete driver identified as “Mikey” and Tom Lapham (“Lapham”), an inspector with
the Kentucky Transportation Cabinet.
The incident resulting in Groce’s
injuries also caused injuries to Nelson and McIntosh and the death of Decker
triggering an investigation by KOSHA.
This event also resulted in a civil suit filed in Barren Circuit Court
styled as follows:
Velma Decker, Individually and as
Executrix of the Estate of Kenneth Decker; and Steve Nelson and Linda Nelson,
his wife; Jamie Groce and John McIntosh (Plaintiffs)
v.
Greg Meredith, Individually and in his
official capacity as Chief District Engineer for KYTC DO3; Kevin Geralds,
Individually and in his official capacity as Engineer Supervisor for KYTC DO3;
Ashley Graves, Individually and in his official capacity as Transportation
Engineering Supervisor for KYTC DO3; Tom Lapham, Individually and in his
official capacity as Transportation Engineer for KYTC DO3; Mark Love,
Individually and his official capacity as Tech Transportation Engineer for KYTC
DO3; Jon Lam, Individually and in his official capacity as Staff Engineer for
KYTC DO3; and Daryl Price, Individually and his official capacity as Project
Engineer for KYTC DO3 (Defendants/Third Party Plaintiffs)
v.
Scotty’s Contracting and Stone LLC and
Vanmeter Contracting, Inc. (Third Party Defendants).
In addition to the medical evidence,
the records pertaining to KOSHA’s investigation were introduced. The parties also introduced copies of the
following depositions taken in the Barren Circuit Court action:
Lindsey
Russell Mattingly – superintendent for
Vanmeter
Lipe
Mark Vanmeter – owner of Vanmeter
Groce
Ashley Graves – Transportation Engineer
supervisor for District 3.
Kevin Geralds – Staff Engineer – District 3. Worked under Ashley Graves.
Tom Lapham – Transportation Engineer Project
Inspector with District 3.
Mark Love – Inspector with Transportation
Cabinet – District 3. Helped Tom Lapham
Greg Meredith – Executive Director Kentucky
Transportation Cabinet Chief District Engineer for District 3.
Daryl Price – Transportation Engineer Branch
Manager for District 3.
Jon Lam – Safety Coordinator
for the Department of Highways for District 3.
In addition, Nelson’s deposition and
hearing testimony in his workers’ compensation claim (Claim No. 2012-67587)
were introduced. Nelson, along with
Groce, testified at the November 2, 2015, hearing in the case sub judice.
During her August 5, 2014, deposition in the Barren Circuit
Court action, Groce testified that at the time of her injuries she was working as
a carpenter. On that date, Vanmeter had
no safety coordinator on the job site.
Groce explained they had already poured one section of the retaining
wall and were pouring another section.
All sections of the retaining wall were the same size. The metal forms in which the concrete was
poured were erected one day, the concrete poured the next day, and the
following day the forms were taken down.
The forms were attached to the concrete footer which ran adjacent to the
earth wall.
On October 8, 2012, Groce, Nelson, Decker,
and McIntosh were on top of the concrete form as the concrete was being poured
into the form. Decker was behind Groce
on the form and McIntosh and Nelson were on the front directing the bucket in
order to pour the concrete into the form.
Groce requested a little more concrete be poured in order to finish off
the top. As the last of the concrete was
being poured into the form, Groce heard a huge pop like an explosion. She remembers nothing else until she was awakened
as she lay underneath the crane on the highway pavement.[1]
Nelson testified they were constructing a twenty-four foot
long, fourteen feet high concrete retaining wall next to a highway. The retaining wall was eight feet wide at the
bottom and a foot wide at the top. The
form in which the concrete was poured had been constructed the day before they
poured the concrete. The forms were
secured to a concrete footer running adjacent to the bank where the concrete wall
was being erected. As more concrete was
being poured into the form, Nelson heard a boom. He and the others on the form fell when the
form went six feet up in the air and toppled over. Nelson, Decker, and Groce were thrown toward
the road. McIntosh went off the form
into the concrete. Nelson landed on the
black top next to the crane. Groce was
under the crane and Decker was beside Groce.
As did Groce, Nelson asserted a claim
for enhanced benefits pursuant to KRS 342.165(1). During his November 19, 2014, deposition in
his workers’ compensation claim, Nelson provided the following explanation as
to why he believed enhancement due to a violation of a safety regulation was
merited:
Q: Okay. If I can have just a minute.
Now, you’ve alleged a safety violation as part of this claim. In your own
words, why don’t you kind of describe to me the best – the best you can what
the basis of that safety violation is?
A: You mean what –
Q: Against the –
A: -- what I think happened?
Q: Yeah, or what the –
A: Safety –
Q: -- employer did wrong?
A: -- parts?
Q: Yes.
A: Yeah, I can go there. Like I said,
the first day we was to pour this form, like I said, they done had it set up
and since I had done some of this kind of work before, the foreman asked me to
get up there and put a handrail on it; and that’s a safety feature where we’re
going to sand while we’re pouring this so when this concrete bucket comes in to
us and – and stops and we get up to pour concrete into the form, we’ve got
something to stand on there with a handrail behind it so we don’t – so we don’t
fall off the back of the form. Well, when I get up there putting this form on,
I notice there’s nothing on top of this form to hold it down to the concrete
it’s hooked to down there, and I asked the guy that it killed, ‘Where’s your
tie-downs at? He says, ‘Well, they ain’t going to use them. Those bolts are
going to hold it down.’ Well, when I went down to get a two-by-four and take it
back up with me, I asked the foreman, which is Lindon, ‘Well, why have you all
not got tie-downs on this wall?’ ‘We don’t need them. These bolts in the footer
is going to hold this wall down.’ Of course, you don’t go telling the foreman,
you know, what you think or they’ll fire you, more than likely, because they
don’t like to hear something that maybe you know might just save somebody or
something you know that worked before out to still work. So, I – so, I was
like, ‘Okay then, that’s fine.’ But them bolts that holds that footer to the
ground is only to hold it from going out.
Q: Uh-huh.
A: It’s not to hold that big wall down.
Whoever poured that footer, which was Lindon and whoever else was there before
I got there – there’s a bracket that goes down in that footer while the
concrete is wet and it has got a big hole in it for a bolt, and then when that gets
hard – that footer gets hard and you set this form up there, there’s a big long
bolt that goes plumb up out of the top of that form and then you put a thing –
if there’s two forms – say, this is one and this is one – you run a thing all
of the way across that, two of them. You’ve got a great big nut about this big
around that fits on that bolt and washer. Well, you put two metal things across
here. When that bolt is sticking up through, you put that washer on and put
that bolt on and you tighten that down just as tight as you can get it.
Q: So, that’s the ties you’re talking
about?
A: That’s the tie-down. That’s holding
that to that footer and keeps that form pulled down.
Q: Okay. So, the tie-down is actually
down in the form?
A: They didn’t have none.
Q: Oh, I – and I’m sorry. Generally,
the tie-down is actually in the form –
A: Yes.
Q: -- as opposed to –
A: Inside it –
Q: -- something –
A: -- yes.
Q: -- over the top of the form?
A: Yes.
Q: Okay. And it’s usually a piece of
metal that comes up through the –
A: Big –
Q: -- footer?
A: -- metal, yes.
Q: Okay.
A: Big old bar. I’m going to say
anywhere from an inch to two inches around. It just depends on what – and
that’s another thing, the engineer had to figure out how big of one to use. He
had to know how much concrete he had in there, what kind of weight was pushing
up on that, and they was supposed to done have all of that figured out.
Q: As far as the screws that were
holding the form down, what did they have on top of them?
A: They’re just a nut. They are just –
you know, just like you’re going to turn a bolt, put a wrench on a bolt that
has got a head on it that you turn. That’s all that – that’s all it was, was a
bolt with a head on it.
Q: Okay. And how big were those nuts?
A: About an inch, an inch and a quarter
big around and about six, seven inches long.
Q: And what held the bolt – the – the
bolt down in the –
A: Just the –
Q: -- concrete?
A: Just the concrete itself. It’s
called – it’s – it has got a type thread on it that actually – when you drill
that hole, the hole is actually just a hair smaller than this bolt, because it
has got a thread that is – sticks out, I’m going to say, an eighth of an inch
out actually away from the bolt, and that’s what cuts a groove and goes down in
that hole and then that’s what it holds to the concrete, is the threads.
Q: And just so I got my termination or
the terms I’m using correct, that was called a tie-down bolt or a tie-down rod
–
A: No –
Q: -- or was that –
A: -- that’s – actually, this – that’s
called an anchor bolt.
Q: Yeah, and I’m – I’m sorry. Not the
ones on the form, but the one that you said was missing?
A: The tie-down, yeah. Those are – I
call them tie-downs. I’m sure there’s another big high-class name for it – I
don’t know – but we – I’ve always called them tie-downs.
Q: And had you used those on other
projects?
A: Oh, yes, on barrier walls and
different places. Just anything that you’re going to – that has got a batter in
it. Any type of wall that has got a batter in it has got up pressure when you pour
concrete in it. When you pour concrete in a battered wall, each lift comes up.
That’s – that’s pushing up on that form. Now, if that wall was standing
straight up, the only pressure you have is pushing out pressure; but this wall
was a battered gravity wall, which had both, and it also pushed out and it also
pushed up.
Q: Uh-huh. And just so I’m clear, there
was only one of these per form or multiple per form in a form that size?
A: There was two of them.
KOSHA Report Number 003-13 for Inspection
No. 315590042 describes the accident as follows:
The accident occurred on Monday,
October 8, 2012, approximately 11:30 AM and 3939 Burkesville Rd. Glasgow, Ky.
Four (4) employees were engaged in pouring concrete into a retaining wall form.
The employees were working from a Form Scaffold, twenty four (24) inches wide
by twenty four (24) foot long mounted to a Plate Girder Forming System
retaining wall form 12.5 feet above the ground below. The retaining wall form
was eight (8) foot wide at the base narrowing to one (1) foot at the top, 12.5
foot tall and twenty four (24) foot in length. The employees were pouring
concrete into the form using a bucket and crane system and a vibrator machine
to settle the concrete. The form was over 95% filled with approximately fifty
four (54) yards of concrete. As the employees were topping off the fill, they
heard a loud pop and the entire form raised and toppled to the east toward the
crane. Three (3) employees were thrown toward the crane and one (1) employee
fell backwards into the concrete surging out from under the toppled form.
The result was that the entire form
work raised and toppled to its side throwing the employees into a nearby crane
and into the concrete, resulting in three (3) Vanmeter Contracting, Inc., employee
injuries and the death of one (1) Vanmeter Contracting Inc., employee, Kenneth
Decker. Mr. Decker died due to blunt force trauma when he collided with
structural members of the crane that was located by the form wall after the
form wall collapsed as employees were standing on it. The accident occurred at
3939 Burkesville Rd. in Glasgow, KY.
The October 20, 2012, University of
Louisville Hospital discharge summary provides the following diagnosis of Groce’s
condition as well as the procedures performed:
ADMISSION DIAGNOSIS(ES)
1. Right ankle fracture dislocation
PRINCIPAL FINAL DIAGNOSIS(ES)
1. Right distal tibia fracture
2. Right tibial plateau fracture
3. Right distal fibula fracture
4. Talar neck fracture
5. Calcaneus fracture
6. Cuboid fracture
7. Pan-talar dislocation
8. Right scapular fracture
9. Right anterior shoulder dislocation
10.
Right
pneumothorax
11.
Right
sacral ala fracture
CONSULATIONS
1. Trauma Surgery
INVASIVE PROCEDURES
1. Closed reduction of pan-talar
dislocation
2. Placement of right thoracostomy tube
3. External fixation of right distal tibia
fracture with external fixation of the right foot ankle.
4. Open reduction and internal fixation
right talus fracture
5. External fixation of pelvis with
anterior frame
6. S1 transsacral screw placement
As a result of its investigations, KOSHA
issued the following Citation and Notification of Penalty:
Citation 01 Item 001 - Type of
Violation: Serious.
29 CFR 1926.451(g)(1)(vii): Each
employee on a scaffold, not otherwise specified in paragraphs (g)(1)(i) through
(g)(1)(vi) of this section, more than ten (10) feet (3.1 m) above lower level
was not protected by the use of personal fall arrest systems or guardrail
systems meeting the requirements of paragraph (g)(4) of this section.
a) On or about 10-08-12, four (4)
employees of Vanmeter Contracting, Inc. were working at 3939 Burkesville Rd, in
Glasgow, KY from a supported scaffold over twelve (12) feet from the ground
below with no end rail, no mid rail, or kick board.
Citation 01 Item 002 – Type of
Violation: Serious.
29 CFR 1926.652(a)(1); Each employee in
an excavation was not protected from cave-ins by an adequate protective system
designed in accordance with paragraph (b) or (c) of this section.
a) On or about 10-08-12, four (4)
employees of Vanmeter Contracting, Inc., had been working in a trench four (4)
feet wide, twelve (12) feet deep and one hundred twenty four (124) feet long
located at 3939 Burkesville Rd. in Glasgow, KY, without cave in protection.
Citation 01 Item 003 – Type of
Violation: Serious
29 CFR 1926.703(a)(1): Formwork was not
designed, fabricated, erected, supported, braced and maintained so that it
would be capable of supporting without failure all vertical and lateral loads
that could reasonably be anticipated to be applied to the formwork.
a) On or about 10-08-12, four (4)
employees of Vanmeter Contracting, Inc., had been working on a Plate Girder
Forming System more than twelve (12) feet above the surface below. The
anchoring, bracing and supports gave way as a result of a Telescoping Push-Pull
Pipe Brace used to hold the setup down not being used and anchor bolt spacing
being irregular and not in four (4) foot intervals as prescribed by the Plate
Girder Technical Data sheet (page five (5). The result was that the entire form
work raised and toppled to its side throwing the employees into a nearby crane
and into the concrete, resulting in three (3) Vanmeter Contracting, Inc.,
employee injuries and the death of one (1) Vanmeter Contracting, Inc.,
employee, Kenneth Decker. Mr. Decker died due to blunt force trauma when he
collided with structural members of the crane that was located by the form wall
after the form wall collapsed as employees were standing on it. The accident
occurred at 3939 Burkesville Rd., in Glasgow, KY.
The proposed penalty for each violation was $5,600.00. The Citation and Notification of Penalty
reveals all three violations were “corrected during inspection.” Attached to the citations was an invoice from
KOSHA in the amount of $16,800.00.
On April 9, 2013, Vanmeter forwarded a letter to KOSHA
stating as follows:
Please consider this letter as a
‘Notice of Contest’ for the Inspection Number: 315590026. We wish to contest
the citation and proposed penalty for Citation 01 Item 003 of the citation we
received on March 25, 2013.
As a result, KOSHA filed an administrative
complaint before the Kentucky Occupational Safety and Health Review Commission
requesting the commission affirm the citation, assess the penalty, and affirm
the original period of abatement against Vanmeter.
A document styled “Kentucky Labor Cabinet – Occupational
Safety & Health Program – Inspection: 315590026 pertaining to Citation 01
Item 003,” provides the following explanation of how requirements of the
standard were violated:
On or about 10-08-12, four (4)
employees of Vanmeter Contracting, Inc., had been working on a Plate Girder
Forming System, on the top and back of the form, more than twelve (12) feet
above the surface below. The anchoring, bracing and supports gave way as a
result of a Telescoping Push-Pull Pipe Brace used to hold the setup down not
being used and anchor bolt spacing being irregular and not in four (4) foot
intervals as prescribed by the Plate Girder Technical Data sheet (page five
(5). The result was that the entire form work raised and toppled to its side
throwing the employees into a nearby crane and into the concrete, resulting in
three (3) Vanmeter Contracting, Inc., employee injuries and the death of one
(1) Vanmeter Contracting, Inc., employee, Kenneth Decker.
Mr. Decker died due to blunt force
trauma when he collided with structural members of the crane that was located
by the form wall after the form wall collapsed as employees were standing on
it. The accident occurred at 3939 Burkesville Rd., in Glasgow, KY.
The scope of this investigation
pertains to the pertinent elements and conditions at the time of the accident
which resulted in the death [sic] Mr. Decker, the Vanmeter Contracting Inc.,
employee died and the conditions observed on site at the time of the
inspection.
Under the heading, “Employer knowledge
of hazard,” the following is provided:
Per Mr. Cornwell, Project Manager, a
total of Sixteen (16) anchor bolts are required with the configuration of the
pour, spaced at four (4) foot intervals. In this case, they were not. The
employer had the plans for the form, and could have been aware of the hazard.
Under the heading, “Severity and
probability assessment,” is the following:
HIGH SEVERITY: Death from injury or
illness; injuries involving permanent disability; or chronic, irreversible
illnesses. The most serious injury or illness which is reasonably predictable
as a result of an employee’s exposure to this hazard would be: Death.
PROBABILITY ASSESSMENT
GREATER PROBABILITY: The likelihood
that an injury or illness will occur is judged to be relatively HIGH based on
the following factors and reasons: Four (4) or more employees were engaged in
retaining wall forming work on top of a Plate Girder Forming system eight (8)
foot wide at the base, twelve (12) foot high narrowing to one (1) foot at the
top with a concrete capacity of up to fifty five (55) yards for up to eight (8)
hours.
In its Verified Answer, Vanmeter only
denied the allegations relating to Citation 01 Item 003.
On June 28, 2013, a Notice and Motion
to Withdraw Notice of Contest was filed in which Vanmeter represented all of
the alleged violations issued on March 21, 2013, were abated. In addition, it represented the proposed
penalty of $16,800.00 had been reduced to $14,000.00 and would be paid upon
execution of the stipulation and settlement agreement. Vanmeter represented that in the future it
would comply with all applicable provisions of the Act and standards. The pleading was signed by the Labor Cabinet,
Office of General Counsel, Director of the Division of Compliance with the
Kentucky Labor Cabinet, counsel for Vanmeter, and K. Mark Vanmeter, owner of
Vanmeter Contracting.
The Stipulation and Settlement
Agreement executed by the same parties states one citation was issued alleging
serious violations of the Act and standards and set forth the amount of the total
penalties assessed for the serious and other than serious violations. It also noted Vanmeter had filed a Notice of Contest
objecting to and contesting Citation 01 Item 003. As a result, the Secretary of the Labor
Cabinet had filed a complaint with the Kentucky Occupational Safety and Health
Review Commission which was timely answered by Vanmeter. Thereafter, a settlement was reached. The Stipulation and Settlement Agreement
stated that after weighing the evidence in this case and all circumstances
surrounding the alleged violations, the parties agreed to the following:
a. Respondent represents the alleged
violations in the citation issued on March 21, 2013, had been abated.
b. Citation 1, Items 1-3 remain cited
as Serious.
c. The total proposed penalty shall be
reduced from $16,800.00 to $14,000.00 and shall be paid upon execution of the
Stipulation and Settlement Agreement. Payment shall be made payable to the
Kentucky State Treasurer.
d. Respondent’s agreement as set forth
hereinabove and its execution of this Settlement Agreement are not admissions
by the Respondent of any violation of the Act or the standards or regulations
promulgated thereunder nor admissions by Respondent of the truth of any of the
allegations or conclusions contained in the Citations or Complaint; provided,
however, that the Citations and withdrawal of Notice of Contest may be used as
a basis for subsequent failure to abate or repeated Citations issued after
approval of this Settlement Agreement by the Kentucky Occupational Safety and
Health Review Commission, and may be referred to in subsequent Kentucky
Occupational Safety and Health Program inspections and cases.
On July 3, 2014, a Recommended Order Sustaining
a Motion to Withdraw Contest and Adopting Settlement was entered. That order specifically notes as follows:
1. Respondent represents that all
conditions alleged in the citations have been abated.
2. Citation 1, Items 1-3 shall remain
as cited, except the total penalty amount shall be reduced to $14,000.00
3. In conjunction with the Settlement
Agreement, the Respondent has agreed to withdraw its notice of contest to the
citation.
4. Affected employees are to be given
notice of the settlement documents by posting for a minimum of ten (10)
consecutive days, beginning July 1, 2013 and continuing through July 10, 2013
pursuant to Section 51 of this Commissioner’s Rules of Procedure.
Therefore, it was recommended the
commission enter an order sustaining Vanmeter’s motion to withdraw notice of
contest and adopting the parties’ settlement agreement. KOSHA’s records reflect in a letter dated
June 27, 2013, Vanmeter’s attorney forwarded a check for $14,000.00 payable to
the state of Kentucky commensurate with the recommended order of the hearing
officer.
In the November 30, 2015, decision, the ALJ denied Groce’s
claim for enhanced benefits pursuant to KRS 342.165(1) finding:
The safety penalty
claim stems from citations issued by the Kentucky Labor Cabinet, Office of
Occupational Safety and Health. The
first citation was for improper fall protection at the job site. The second was
for inadequate trenching, or cave-in protection, at the job site. The third was
for improper support or bracing of formwork to protect against the failure of
vertical and lateral loads on the specific date of injury. 29 CFR 1926.703
(a)(1).
KRS 342.165(1)
provides in pertinent 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.
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 (Ky. 1996). Application of the safety penalty against an
employer requires proof indicating a worker's injury was caused "in any
degree" by the employer’s intentional violation of a specific safety
statute or regulation. KRS 342.165(1). When an injured employee seeks
imposition of a safety penalty for an employer’s alleged violation of a
specific statute or regulation, she must: 1) prove a violation of a safety
statute or regulation; 2) establish the violation was “intentional” as defined
by applicable law; and 3) prove the accident was, in any degree, caused by the
intentional violation.
In the KOSH
proceedings, the Defendant conceded liability for the first two citations, but
maintains that these job site deficiencies did not contribute whatsoever to
Groce’s injuries from the failure of the retaining wall, and thus cannot be
used to support application of the safety penalty. The ALJ agrees. The
Defendant would have been cited for these same deficiencies had the state
inspected the job site prior to the failure of the wall.
The inadequate trenching clearly played no role in
the failure of the wall, nor did it contribute to causing Groce’s injuries
because of the failure of the wall. As for the lack of fall protection, such
obviously played no role in the failure of the wall, but the ALJ carefully
considered whether such contributed (“in any degree”) to Groce’s injuries that
resulted from the failure of the wall. That issue was settled for the ALJ by
Jon Lamb, safety coordinator for the Department of Highways, who testified:
“The fall protection referred to would be those workers that are on top of the
form at a height. The fall protections or prevention would be, for instance,
railing around this platform that would prevent them from accidentally backing
off or stepping off the platform. It would not have--if the form overturned, it
would not have protected them from that.” (p. 36). It was suggested in the
depositions in the civil case that had the Employer stopped work on the project
to correct the fall protection and trenching deficiencies then the accident
would not have happened. But that notion only serves to support the conclusion
that these two general deficiencies were unrelated to Groce’s accident; the job
would have resumed after being halted only long enough to cure the
deficiencies, and the wall would have ultimately fallen when it progressed to
the point it did on October 8, 2012.
The Defendant contested the third KOSH citation
related to the alleged failure to have more properly secured the retaining
wall, and, although it paid close to the original fine amount in settlement of
that citation, argues that the evidence fails to support the allegation in the
citation or the application of the safety penalty enhancement. Again, the ALJ
agrees.
The third citation alleges: “The anchoring, bracing and supports gave way
as a result of a Telescoping Push-Pull Pipe Brace used to hold the setup down
not being used and anchor bolt
spacing being irregular and not in four (4) foot intervals…” (emphasis added).
As for the first basis in this citation that the
Defendant failed to utilize a telescoping push-pull pipe brace, the ALJ could
find no support for that allegation anywhere in the KOSH materials – or, for
that matter, another mention of the subject.
Further, the job foreman, Linden Lipe, and job superintendent, Russell
Mattingly, testified pipe bracing was in fact utilized, and photographs were
offered as proof of that. (Mattingly, p. 29-30). Still further, Groce did not support this
contention by testifying to the lack of use of pipe bracing. And finally, even if pipe bracing was not
used, Lipe, Mattingly, and Mark VanMeter testified there is no safety component
to its use; they explained the bracing is used to hold the form in line until
the other side is set.
As for the second basis for the third citation, that
the Defendant improperly spaced the anchor bolts in the wall, evidence of that
fact is lacking as well.
First of all, there is an assumption of a
requirement that anchor bolts are to be spaced at four-foot intervals, but
there is no direct evidence of that. The
citation makes reference to such a requirement in a “Plate Girder Technical
Data Sheet,” but the ALJ failed to locate that document within this voluminous
record.
Such a requirement is said to have been
acknowledged, and violated, by “Mr. Cornwell, Project Manager” on page two of
the inspector’s initial report (11th page of Plaintiff’s filing of
KOSH records). However, in an October
29, 2012, email from Joseph Cornwell to inspector Anthony Morley, Cornwell
advised Morley that the Defendant actually exceeded manufacturer’s
specifications in placement of the anchors, which would have satisfied the
spacing requirement as well. (Appendix E to Plaintiff’s filing of KOSH
records).
Indeed, Morley’s own typewritten notes from the date
of the accident document inspection of the failed wall and observation of at
least 16 tie bolts at “4 ft spacing,” the very requirement he says was
violated. (Appendix D to Plaintiff’s filing of KOSH records).
For perhaps these reasons, it is noteworthy that the
inspector’s seemingly final report (at 49th page of Plaintiff’s KOSH
filing) lists only two violations – unsafe excavating practices and inadequate
guardrails – and is silent with respect to pipe bracing or spacing of anchor
bolts.
There is no expert evidence on the requirements for
building a retaining wall, and consequently, no such evidence that the
Defendant violated any known statute or regulation related to the construction
of the wall on October 8, 2012. The transportation cabinet witnesses did not
criticize the building of the wall, and in fact seemed to dismiss the KOSH
citation. There are no witnesses that
challenge the expertise offered by the Defendant’s representatives, including
the Defendant’s owner, Mark VanMeter. He
said there was no design for the wall – that it was built based on the
collective experience of himself and his employees. Nineteen anchor bolts were
used on the wall involved in Groce’s accident, which, given the wall’s size,
means they were placed within four-foot intervals. VanMeter said his company
typically spaces the bolts at eight feet, and has built “many walls of taller
nature than this and had not put them at that close of a spacing.” (p.
82). Two other retaining walls had been
built with this project in the same fashion without incident. After the accident VanMeter had the accident
reviewed by the company that manufactured the forms, EFCO Corporation, and it
advised him that his company “had more anchor bolts in than what they even
specified.” (Id.)
Plaintiff makes two statements in her Brief in
support of her claim to the safety penalty enhancement based on alleged
violation of a specific safety rule. First, she says, “there was a specific
regulation requiring the concrete form to be anchored in a specific manner.”
However, Groce did not identify the “specific manner” in which the form was to
be anchored. If that reference is to the
four-foot spacing, no such requirement was specifically identified; and,
assuming such a requirement, the evidence from Morley and VanMeter, supported
by photographs, is that the anchors were spaced properly. Plaintiff offered
[sic] evidence or argument to the contrary.
Second, she says, “the fact the form was not
properly anchored was known by the defendant prior to its collapse, as proven
by Steven Nelson’s testimony regarding his conversation with the foreman, when
he stated the form was not anchored properly.”
This argument for the safety penalty raises an entirely different
justification for its imposition because Nelson’s testimony does not speak to
any allegation made within the KOSH citations. Nelson said the Defendant should
have used tie- downs in addition to the anchor bolts, a completely different
matter than improper spacing of anchor bolts. The Defendant was cited for
improper spacing of anchor bolts, not for failure to have used tie-downs.
Nelson is not qualified to establish the existence of a safety requirement.
Plaintiff has not offered any expert evidence, or evidence of any kind of an
industry standard, that requires tie-downs for a project such as was involved
in this case. (Groce, a construction laborer like Nelson, did not criticize a
lack of tie-downs.)
Nelson did speak, however, to the bolt spacing issue
from the KOSH citation during cross examination at the Hearing. He said he did
not know how many bolts had been used to anchor the form, but thought they were
set “anywhere from eighteen to two foot” apart. (HT p. 47). By Nelson’s own
testimony, then, the bolts were spaced within four feet of each other, assuming
that such was a requirement. Nelson went
on to criticize the Defendant for not placing bolts every eight inches. That
testimony is at odds with the rest of the evidence in this case and casts doubt
on his opinion that tie-downs should have been used on this job.
The ALJ finds Groce has not sustained her burden of
proving a violation of a specific safety statute or regulation.
Groce also argues that she is entitled to the safety
penalty enhancement based on the Defendant’s violation of the general duty
clause of KRS 338.031(1)(a), which requires an employer “to furnish 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. Groce’s sole argument in support of this allegation is that the mere
occurrence of the wall’s collapse is sufficient to impute a violation of the
general duty clause.
An analysis of the general
duty clause involves four considerations: 1) Did the condition or activity
present a hazard to the employee? 2) Did the employer’s industry generally
recognize this hazard? 3) Was the hazard likely to cause death or serious
physical harm to employee? And 4) Did a feasible means exist to eliminate
or reduce the hazard? Lexington-Fayette
Urban County Government v. Offutt, 11 S.W.3d 598 (Ky. App. 2000). Since the
evidence is that there is no prescribed, industry-accepted method for pouring
forms or anchoring them to footers, none of the above considerations are
invoked. Groce has not argued how the evidence supports her claim within the Offut framework. The ALJ finds she has not sustained her
burden of proving the Defendant’s violation of the general duty clause.
Groce filed a petition for
reconsideration pointing out that in Nelson’s workers’ compensation claim, the
ALJ issued a decision finding a safety violation and enhancing Nelson’s
benefits. Groce contended Nelson
qualified as an expert witness. She
noted there may have been bolts and rods to keep the form together but nothing was
installed to keep the form adequately attached to the footer so that it would
not collapse. Groce also took issue with
the ALJ’s findings regarding the anchor bolts.
The January 4, 2016, Order, denied
the petition for reconsideration.
On appeal, Groce argues a safety
violation occurred and a penalty should have been assessed. She argues Nelson informed a supervisor prior
to the collapse that the concrete form had not been properly constructed. Consequently, Vanmeter was aware of the
violation and intentionally ignored it.
Groce contends Nelson’s testimony established an intentional safety violation
which warrants imposition of the safety penalty.
Groce also contends the finding of a
safety violation in Nelson’s claim is collateral estoppel. She argues although adequate anchor bolts
were used to keep the form from moving, there is no evidence tie-downs were
used to keep the form from collapsing because of the weight of the
concrete. Accordingly, the ALJ should
have found a safety violation occurred and a safety penalty should have been
assessed.
Groce asserts the Kentucky Department
of Labor accepted a fine for the violation pertaining to the concrete
form. She notes that even though
Vanmeter did not admit to committing a safety violation, it paid a substantial
fine to resolve the matter. She asserts
the payment of the fine is evidence of negligence per se. Groce also provides
a brief argument that KRS 338.031(1)(a), commonly known as the “general duty”
provision, was also violated.
In Citation 01 Item 003, KOSHA stated
Vanmeter was cited because its form work was not designed, fabricated, erected,
supported, braced, and maintained so that it would be capable of supporting
without failure all vertical and lateral loads that could reasonably be
anticipated to be applied to the form work.
Since Vanmeter subsequently withdrew its contest of that citation and
paid a fine as a result of the citation, we vacate that portion of the ALJ’s
decision finding Groce did not sustain her burden of proving a violation of a
safety statute or regulation.
Vanmeter was cited for its failure to
properly anchor the metal concrete form and ultimately did not contest that
citation and paid a fine as a result of its violation of the administrative safety
regulation. The record reflects each
fine was reduced proportionately. As a
result of Citations 01 Items 001 and 002, Vanmeter paid a $4,667.00 fine for each.
For Citation 01 Item 003, Vanmeter paid a fine of $4,666.00. Regardless of the language contained in the
settlement agreement, it is abundantly clear Vanmeter withdrew its contest of
Citation 01 Item 003, acknowledged its failure to comply with 29 CFR 1926.703(a)(1),
and paid a fine. In the settlement
agreement, Vanmeter agreed that the violation for which it paid a fine was
serious. Consequently, the ALJ erred in
finding Groce did not sustain her burden of proving a violation of a specific
safety statute or regulation.
The ALJ’s analysis should have
resolved the question of whether Vanmeter’s failure to comply with the safety
regulation identified in Citation 01 Item 003 in any degree caused the accident
and Groce’s resulting injuries. In Chaney
v. Dags Branch Coal Co., 244 S.W.3d 95 (Ky. 2008), the Kentucky Supreme
Court noted as follows:
The MSHA report identified three causes of Chaney's death: 1.)
the absence of standards, policies, and administrative controls at the mine to
ensure that workers would not position themselves in by the second row of
undisturbed permanent roof supports when an extended cut was being mined; 2.)
the absence of a visible warning device to alert workers to the location of the
last row of permanent roof supports; and 3.) the absence of a procedure to
assign responsibility for installing warning devices. It noted that although
some deficiencies existed in the employer's recordkeeping, Chaney received the
required sixteen hours of annual training. The report noted that the accident
occurred when Chaney was positioned in by the second row of permanent roof
supports, immediately after an extended cut was mined. It concluded that the
presence of a warning device would have increased the likelihood that he would
have recognized his proximity to the last row of roof bolts, but no such device
was installed when an unsupported section of roof rock fell in by the second
row of bolts and killed him.
The
employer received two federal citations. First, it was cited for violating 30 C.F.R. §
75.220(a)(1) by failing to comply with the approved roof control
plan. As corrective action, the roof control plan was reviewed and explained to
every employee before mining was resumed. Second, it was cited for violating 30 C.F.R. §
75.208 by failing to have a readily visible warning device or a
permanent barrier to impede travel beyond the end of permanent roof supports at
the approach to the unsupported crosscut between the Number 6 and Number 7
entries. As corrective action, the report indicated that either the roof bolter
operator or the continuous miner operator would “install bright red reflectors
on the last row of permanent supports prior to the continuous mining machine
beginning a new cut.”
Id.
at 97-98.
In Chaney, supra, the Supreme Court concluded the report
and citations of the Mine Safety and Health Administration (“MSHA”) were
admissible as evidence under 803 KAR 25:010 Section 14 (2) as a public
record. In Chaney, supra, there
is no reference to Dags Branch paying a fine as a result of the MSHA citation.
Here, Vanmeter withdrew its contest
of Citation 01 Item 003, agreed its violation was serious and paid a fine. Therefore, we believe the ALJ was required to
find Vanmeter committed a violation of a specific administrative safety regulation. The following language in Chaney, supra,
is applicable:
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 of regulation. If the
violation “in any degree” causes a work-related accident, KRS
342.165(1) applies. AIG/AIU
Insurance Co. v. South Akers Mining Co., LLC, 192 S.W.3d 687 (Ky.2006),
explains that KRS
342.165(1) is not penal in nature, although the party that pays more
or receives less may well view it as such. Instead, KRS
342.165(1) gives employers and workers a financial incentive to
follow safety rules without thwarting the purposes of the Act by removing them
from its coverage. It serves to compensate the party that receives more or pays
less for being subjected to the effects of the opponent's “intentional failure”
to comply with a safety statute or regulation.
Id.
at 101.
The record compels a finding Vanmeter
violated 29 CFR 1926.703(a)(1) as it relates to the formwork utilized in
erecting the concrete retaining wall. Consequently,
the ALJ should have found Vanmeter committed a violation of a specific administrative
safety regulation. The ALJ should have then
determined whether the violation of that specific administrative regulation in
any degree caused Groce’s work-related accident and her resulting injuries.
Accordingly, those portions of the
November 30, 2015, Opinion, Award, and Order and the January 4, 2016, Order
ruling on the petition for reconsideration determining Groce did not sustain
her burden of proving a violation of the specific statute or safety regulation are
REVERSED. The award of income benefits is VACATED. This claim is REMANDED for entry of an amended opinion, award, and order finding
Vanmeter violated 29 CFR 1926.703(a)(1) as set forth in KOSHA’s Citation 01
Item 003. The ALJ shall determine
whether Vanmeter’s violation of that specific safety regulation in any degree
caused Groce’s work-related accident and enter the appropriate award of income
benefits in conformity with the views expressed herein.
ALVEY, CHAIRMAN, CONCURS.
RECHTER, MEMBER, DISSENTS AND FILES A SEPARATE OPINION.
RECHTER,
MEMBER.
In this case, the ALJ provided a thorough and
detailed analysis explaining why he was not convinced Vanmeter committed a
safety violation regarding the security of the retaining wall. His conclusion is well supported by
substantial evidence in the record. The
majority has determined the ALJ was required to find a safety violation
occurred because Vanmeter settled an enforcement proceeding before KOSHA.
We have been provided
no authority for the proposition that settlement of a civil enforcement
proceeding establishes a violation, as a matter of law, for purposes of a
safety penalty in a workers’ compensation proceeding. Furthermore, Vanmeter cannot be collaterally
estopped from defending its position, as there is no identity of parties in
either the KOSHA proceedings or in Nelson’s workers’ compensation claim.
Finally, as a matter of policy, I strongly object to the assertion the ALJ is
required to conclude a safety violation has occurred solely because Vanmeter settled its enforcement action. This is especially concerning given the
circumstances of Vanmeter’s settlement agreement: in the agreement, Vanmeter
expressly stated it does not admit a safety violation occurred. Given the time, expense and uncertainty of
litigation, parties often settle claims or enforcement actions for reasons
wholly unrelated to actual liability.
This reality is recognized even in the criminal arena. See
North Carolina v. Alford, 400 U.S. 25 (1970). I do not believe an employer who settled a
civil penalty, and expressly denied any admission of guilt, should be precluded
from contesting a safety violation in a related workers’ compensation
action. For these reasons, I
respectfully dissent.
COUNSEL
FOR PETITIONER:
HON
SCOTT SCHEYNOST
P
O BOX 58308
LOUISVILLE
KY 40268
COUNSEL
FOR RESPONDENT:
HON
DOUGLAS A USELLIS
600
E MAIN ST STE 100
LOUISVILLE
KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON
DOUGLAS W GOTT
400
E MAIN ST STE 300
BOWLING
GREEN KY 42101
